HL Deb 07 November 2000 vol 618 cc1479-99

(" .—(1) The owner of any land consisting of moor managed for the breeding and shooting of grouse may, so far as appears to him to be necessary in connection with the management of the land for that purpose, by taking such steps as may be prescribed, provide that, during a specified period, the right conferred by section 2(1) is exercisable only by persons who do not take dogs on the land.

(2) The owner of any land may, so far as appears to him to be necessary in connection with lambing, by taking such steps as may be prescribed, provide that during a specified period the right conferred by section 2(1) is exercisable only by persons who do not take dogs into any field or enclosure on the land in which there are sheep.

(3) In subsection (2) "field or enclosure" means a field or enclosure of not more than 15 hectares.

(4) As respects any land—

  1. (a) any period specified under subsection (1)) may not be more than five years,
  2. (b) not more than one period may be specified under subsection (2) in any calendar year, and that period may not be more than six weeks.

(5) A restriction imposed under subsection (1) or (2) does not prevent a blind person from taking with him a trained guide dog, or a deaf person from taking with him a trained hearing dog.").

On Question, amendment agreed to.

[Amendments Nos. 119 and 120 not moved.]

Clause 22 [Land management]:

Earl Peel to move Amendment No. 121: Clause 22, page 13, line 21, leave out ("may") and insert ("shall").

Baroness Byford

My Lords, I rise to speak to our Amendments Nos. 123 and 124. It may be for the convenience of the House if I say that I shall not move Amendment No. 127. Amendments Nos. 123 and 124 speak for themselves. Amendment No. 123 suggests that utilisation is necessary for the future commercialisation of the land management practices. During the weeks in which we have been debating the Bill, we have been looking at the way in which land is currently managed and at future land management practices. Amendment No. 123 is aimed at that.

Amendment No. 124 is intended to cover the many countryside schemes which are already in place but which might not fall within the ambit of the Bill. It also recognises that future land management may differ from existing practices. We need to be able to have due regard to the preservation of flora and fauna, or geological and physiological features.

I am speaking to Amendments Nos. 123 and 124 and I shall not move Amendment No. 127. I apologise, I am speaking to Amendment No. 121, which turns "may" into "shall". That makes the provision more positive and I apologise to noble Lords for not making that clear. In fact, I am not speaking to that amendment because it stands in the name of my noble friend Lord Peel.

I need to start again. Amendment No. 121 is my noble friend's amendment but when it was called I rose to speak to the others. With the acceptance of the House, I shall sit down and let my noble friend Lord Peel move his amendment.

Earl Peel

My Lords, I think I am in order. Amendment No. 121 is the first in the group, so with the leave of the House I shall speak to Amendments Nos. 121, 122 and 125.

With regard to Amendment No. 121, Clause 22 currently provides that the authority, the Countryside Agency, the CCW and the national park authorities may grant a direction when they are satisfied that it is necessary for land management purposes. But, surely, if the authority is satisfied that a direction is necessary it must make the direction. Otherwise, it would be failing to respond properly to the requirements of the owner to manage the land.

In Committee, (in the debate on Amendment No. 243 on 5th October, at col. 1774 of the Official Report) the Minister said that consent for directions would not unreasonably be withheld. I suggest that the logical response is to provide that the authority "shall" make a direction where it is satisfied that the exclusion or restriction is necessary. As we have heard many times during debates on the Bill in your Lordships' House, the closure periods for land management purposes are an essential safeguard under the Bill and the system cannot be compromised. Surely, if the access authority decides that such a request for closure is appropriate, why should there then be an element of discretion? That seems to me to be illogical and Amendment No. 121 seeks to remove that contradiction.

I turn next to Amendments Nos. 122 and 125. Despite assurances from Ministers that access authorities may take an enlightened approach to requests for closures under Clause 22, some comments that I have heard indicate that on occasions that ideal may be questioned. It is also possible that the various access authorities will take a rather different approach among themselves. The purpose of Amendment No. 122 is to remove "necessary" and insert "expedient".

However, there is another reason why I believe this may be necessary. I have been alerted by the agreement drawn up, between English Nature and the Countryside Agency entitled Nature Conservation of Access Land. I believe that my amendment has a bearing on the agreement for the following reasons. In the agreement both organisations explain their statutory roles and how they will affect the workings of the Bill. The agreement states that English Nature is the statutory advisory body on nature conservation. In the context of the agreement much is written about closures for the purposes of nature conservation. I very much welcome that. I raised this matter several times in Committee and sought an assurance that the Sandford principle would prevail. This agreement clarifies the position.

The agreement also states that the Countryside Agency is responsible for taking action for the economic and social well-being of the English countryside However, there is nothing in the agreement to say that closure restrictions will be imposed specifically for those purposes; it refers only to nature conservation purposes. I realise that the agreement is related specifically to nature conservation access land and not necessarily to other matters such as the economic and social well-being of the English countryside. None the less, I remain concerned about the absence of similar guidance from the Countryside Agency to ensure that access land is not permitted to compromise land management and local economic well-being. It may be that something to that effect has been issued by the Countryside Agency but I am not aware of it.

This raises a suspicion in my mind as to how the access authorities will view requests for closure orders when dealing with economic matters. I believe that if "expedient" replaces "necessary" it is more likely that the access authorities will take a realistic and practical approach to this very important part of the Bill. I beg to move.

11 p.m.

Lord Hardy of Wath

My Lords, I am slightly concerned about some of these amendments. I refer first to Amendment No. 124. It could be argued that to conserve very large areas one would not allow people access at all because they might injure wildlife. It has some similarity to the amendment which I moved last week. (I lose track of the time because of late sittings.) I suggested that it should be possible to prevent access in nature reserves for the purpose of protecting endangered species. The Government did not accept the amendment and said that adequate capacity existed through an approach to English Nature. It may be desirable for those responsible to have a little more capacity to act immediately, without having to proceed through another agency, at least in emergencies. However, it would be interesting to hear the Government's response to the amendment.

I turn to Amendment No. 124A. The point in that amendment which I found rather striking is that it would refuse access to prevent harm to an animal. We have been talking about preventing access in order that these animals can be shot. We cannot have one and not the other.

The Government have made substantial concessions. I have sympathy with those who seek to defend the rural interest; those who say, "Save country sports". But if those who are practising country sports then make life difficult for the urban majority—for example, by saying to responsible people who want to keep their dogs on a lead that they cannot even go on the land—they will stimulate a hostility that may not have existed. Those involved in country sports, as they look at the Bill and seek to persuade the Government to make further concessions, may be acting in a way that is disadvantageous to their interests and irritating to those in urban communities who respect their role and recognise its importance but also want to enjoy the countryside.

Baroness Byford

My Lords, I hope I am coming in at the right moment. I apologise to my noble friend Lord Peel. I do not think I have ever been as good-looking as my noble friend and I am sorry that I rose to speak before him.

Perhaps I may turn to the amendments standing in my name, Amendments No 123, 124 and 127. I do not intend to move Amendment No. 127. Amendments Nos. 123 and 124 refer to the position of owners or occupiers who may decide to diversify, either commercially or by signing up to one of the Government's stewardship schemes. We discussed the matter earlier. I should like to reassure the noble Lord, Lord Hardy, that my amendments were not intended to make land inaccessible to people. I apologise if they had that interpretation. That was not the purpose behind them.

I turn to Amendment No. 124. There is no formal right of application in the Bill for owners or occupiers to seek closures or restrictions on conservation grounds. Some conservation bodies may own access land; for example, the RSPB, the Wildlife Trust and the National Trust. Other private owners may wish also to secure closures or restrictions for the purposes of protecting wildlife. That does not refer to the wildlife that the noble Lord, Lord Hardy of Wath, has just referred to which are protected to get shot; it refers to the wildlife that are protected to be protected. While such owners may be able to request closures, the lack of a formal right to apply means that there is no corresponding appeal against a refusal to grant such an application.

The effect of the provisions is that the case for closures on conservation grounds could be given less overall weight than the case for closure for land management purposes. That lack of balance should be redressed. The amendment would widen the definition of land management under Clause 22 to include closures to conserve important features of the land. The right for an application for occupiers to close on nature conservation grounds would then be accompanied by a right of appeal under provisions related to the land management closures.

If there was a separate right to apply for conservation closures outside Clause 22, it would need a separate right of appeal. Sweeping it under the existing appeals provision by widening the scope of the existing right of application under Clause 22 represents the best way forward, and hence our amendment.

Viscount Bledisloe

My Lords, I rise to speak to Amendments Nos. 124A, 124B and 125A. Perhaps I may make a general inquiry of the Minister about Clause 22. Noble Lords on the Government Front Bench have frequently relied on the existence of Clause 22 as a reason for arguing against other amendments which have been put forward. My fear—which may be a mere lawyer's fear—in relation to Clause 22 is that it will be interpreted as applying only to very specialised situations; for example, where an occupier would come within Clause 22 only if his case was very different from that of other landowners.

From what noble Lords on the Government Front Bench have said, that is not their intention. They regard Clause 22 as being very wide in giving the agency the power to make these closures in any circumstances where it considers it appropriate. I should be grateful if the Minister could reassure us that there is no such restriction as I fear and that every application can be approached without a presumption either way and certainly without a presumption that an occupier would come within Clause 22 only if his case was very special.

Amendments Nos. 124A and 125A enlarge the number of reasons for which the orders may be made to include the prevention and diminution—I apologise for the fact that the Public Bill Office has misspelt "diminution": it is not my fault—of harm to the land, to people or to animals in order to allow cases to be dealt with where some kinds of access are likely to disturb or frighten people, to disturb or frighten and thereby injure animals or to cause damage. If those matters were included as grounds for closing the land if the access authority thought it appropriate, that would very much reduce the worries that have given rise to earlier amendments.

Amendment No. 124B deals with a separate point. It seeks to make it plain that closure under Clause 22 can relate to specific hours of the day rather than to specific periods of the year; for example, it could be used to control night access. If the Minister can give me a categoric assurance that that power already exists, I shall be happy not to press the amendment. It is important that that should be clear on the face of the Bill. It has been inherent in what Ministers have said in the past that the clause should be enlarged to make it plain that a closure order could relate to a certain part of the day or to specified days.

Baroness Miller of Chilthorne Domer

My Lords, I rise to speak to Amendments Nos. 126 and 128 which stand in my name. The purpose of the amendments is to explore whether the considerations to which the relevant authority should have regard when it is considering whether to grant exclusions or restrictions are adequate. The amendments are tabled to help in particular the small farmer who may need to apply for extra restrictions at weekends. It is possible that a small farmer's partner and children will be fully occupied during the week in other forms of employment or as students. For some purposes of land management it may be reasonable for that person to apply to close at weekends.

As I read Clause 22(3), the factors to which the relevant authority should have regard do not include the opportunities available to the applicant in question to undertake the land management required. Although paragraph (b) refers to, the extent to which the applicant has exercised or proposes to exercise that right", that does not take into account the issues I have raised. Paragraph (c) refers to, the purposes for which he has exercised or proposes to exercise it". However, people would be able to say, "Well, that is a good purpose, but you can do it at some other point in the week".

On 30th October, the Government wrote to my noble friend Lady Hamwee in response to these concerns. They stated that, in their view, nothing in Clause 22(3) would interfere with the discretion already in the gift of the relevant authority. The letter went on to say that the Government did not believe that these amendments were necessary. However, I should like to establish on the record whether the relevant authority can have sufficient regard to an individual case, in particular in relation to the small-scale applicant.

11.15 p.m.

Lord McIntosh of Haringey

My Lords, I do not know quite how many issues are before the House at the moment, given the number of amendments tabled here. However, perhaps I may start by assuring the noble Viscount, Lord Bledisloe, about Clause 22 in general. It is our intention—and the Bill provides—that applications made under Clause 22 will be considered on their merits. Nothing in Clause 22 provides that such applications would have to be wholly exceptional or different from other applications. Having said that, which I believe would apply to all the amendments tabled to Clause 22, I shall go on to deal with them individually.

Amendment No. 121, taken together with Amendments Nos. 122 and 125, would require the relevant authorities to make a direction for a land management closure upon application by someone with an interest in the land, whenever it was expedient for the management of the land. We do not expect that landowners will often need to apply for additional closures on land management grounds. The 28 discretionary days—which can be applied to any parcel of land—will usually be enough. Applications may need to be made if the closure or restriction is required on certain weekend days or bank holidays, or if the 28 days have been used on a particular parcel of land.

It is important that the relevant authorities should have a clear discretion in making such directions so that they can take into account all the facts of the case. Again, this forms a part of my response to the general question put by the noble Viscount, Lord Bledisloe. If a landowner has used up all of his 28 days simply because he does not want walkers on his land, then it is reasonable that the authority should take that into account in deciding whether to give a direction under Clause 22. However, if he has made good use of his discretionary closures, we expect the relevant authority to look favourably on the application and to be likely to make the requested direction.

This means that we are certainly prepared to be flexible and we would expect an authority to judge cases on their merits. What we do not want is to introduce amendments to the Bill which would, by stealth and without good reason, increase the 28 days to 38 days or any other period. Of course, if the authority does not make a direction in accordance with the application, the applicant will have a right of appeal to the Secretary of State or to the National Assembly.

We have also made it clear that the relevant authority should restrict access only as far as is necessary for the purposes outlined in the application. If restricting access to paths would be sufficient to enable the landowner to carry on activities outlined in his application, then that is what should be directed—not a total exclusion. The term "expedient" implies that the direction could be for more than is strictly necessary for the purposes of the application. At least, that is what I think it means; either it means nothing or it means something wider than "necessary". We do not accept that access should be excluded or restricted unless it is necessary for the purposes set out in Chapter II.

Earl Peel

My Lords, before the noble Lord continues with his response, would he be kind enough to pass comment on the question I raised about the agreement between English Nature and the Countryside Agency where they made it perfectly clear that the Sandford principle would apply for nature conservation purposes? However, to the best of my knowledge, I do riot think that the Countryside Agency has released any form of statement declaring, in effect, that closures for land management for the economic well-being of a local area would be seriously considered. That seems to me a little one-sided. Can the noble Lord comment on that?

Lord McIntosh of Haringey

My Lords, I shall move on to the points raised on nature conservation when dealing with another amendment. Perhaps I can respond to the question put by the noble Earl at that time.

Amendments Nos. 123, 124, 124A and 125A would expand on the use of the expression "land management". Clause 22 is vital to the interests of those involved in managing land—that is what it is there for. We have made clear our intention that it should be treated flexibly. It should take into account less common or new forms of land management activity. We want Clause 22 to be flexible, responding to the legitimate needs of land managers. We believe that it should be interpreted generically, including both the active management of the land and also its use for events and activities not traditionally associated with the use of land for agriculture or country sports. Such activities include car rallies and pop festivals, as well as ploughing matches and sheep trials.

That is not to say that we think that directions would always be needed, but we agree that such purposes would be eligible for directions under Clause 22. We do not see any need for Amendment No. 123, since its aims have already been achieved.

It will be for the Countryside Agency and the Countryside Council for Wales to draw up criteria to indicate the kinds of activity which would be included under the term "land management". Both bodies will be able to issue guidance to other relevant authorities, and they will wish to consult on the criteria. I should add that the relevant authorities will not be able to make a direction under Clause 22 if it would be possible to make a direction for the same purpose under Clauses 23 or 24—that is, for the purposes of avoidance of fire risk, safety, nature conservation or heritage preservation.

That brings me to Amendment No. 124, which would allow for directions under Clause 22 to be made also in the interests of conservation of wildlife. Clause 24 already allows that. There is no formal right to apply for a restriction or closure on nature conservation or heritage grounds, but anyone can ask the relevant authority to consider doing so. The conservation bodies will advise the relevant authority on the merits of a direction under Clause 24, and the relevant authority must have regard to advice given to it by the conservation body.

As to the issue raised by the noble Earl, Lord Peel, I shall have to write to him about it rather than respond straightaway, unless rescue comes within the next few minutes.

Amendment No. 124A goes wider than both Amendments Nos. 123 and 124. It would provide that directions could be made under Clause 22 additionally for the purposes of, the prevention and diminution of harm to the land". To a great extent, this is already covered by Clause 22. But it would also seem intended to allow for directions to be made for the purposes of nature conservation and generally for the purposes of security and perhaps privacy. The word "diminution" in this context would mean that any application could be successful if it were able to show the likelihood of some diminution in "harm", however slight.

Having made our concession about excepting land within 20 metres of a dwelling, we believe that directions under Clause 22 should be justified for the purposes of land management, and that this is wide enough to cover all reasonable requirements.

Returning to the guidance issued by the Countryside Agency, the agency will be consulting the National Countryside Access Forum over criteria and guidance for land management closures. I hope that that answers the question of the noble Earl, Lord Peel.

Amendments Nos. 126 and 128 concern the problems of small or part-time farmers who can undertake land management activity only at weekends because they work during the week. Clause 22(3) of the Bill already ensures that the relevant authority has a sufficient discretion to take these matters into account. Where the farmer has exhausted or otherwise made provision for the use of the discretion to close at weekends, and has good reasons for undertaking the work at weekends—for example, because he has another job during the week—it would be entirely proper for the relevant authority to make a direction excluding or restricting access. As to the letter that my noble friend Lord Whitty sent to the noble Baroness, Lady Miller, on 30th October, yes it is true that under paragraph (c), which refers to purposes, this is a legitimate purpose and could well be the basis of an application. There may be other cases also where the limited opportunity to restrict access at weekends under Clause 21 means that it is necessary for the authority to make directions under Clauses 22, 23 or 24, restricting access at the weekends. Nothing in Clause 22(3) or any other provision of Chapter II prevents the exercise in this way of the relevant authority's discretion. We do not believe that Amendments Nos. 126 and 128 are necessary or desirable.

Amendment No. 124B in the name of the noble Viscount, Lord Bledisloe, would amend Clause 22, making it explicit that the closure might apply to a specified part of the day or of certain specified days. I can assure the noble Viscount that the specification that land may be closed for a specified period does not mean a specified period of a year. There is nothing in the clause to prescribe that a specified period must, as a minimum, constitute a complete day. So the amendment is not necessary. If access at night presents problems for land management or nature conservation, then restrictions on closures may be approved under Clause 22 or Clause 24.

Finally, I shall deal with Amendment No.127. The answer is the same as to an earlier amendment. If a landowner has used up all of his 28 days simply because he does not want walkers on the land, then it is reasonable that the authority should be able to take that into account in deciding whether to give a direction under Clause 22.

Baroness Byford

My Lords, I did not speak to Amendment No. 127. I withdrew it.

Lord McIntosh of Haringey

My Lords, excellent! Here endeth the first lesson.

Earl Peel

My Lords, before the noble Lord sits down, I apologise to him if I am wrong. I am not sure that he responded to my Amendment No. 121.

Lord McIntosh of Haringey

My Lords, I responded to Amendment No. 121 together with Amendment Nos. 122 and 125 right at the very beginning. That is when I first made the point about not increasing the 28 days by stealth. In other words, it is proper for the authority to consider whether the application is being made because the first 28 days were used simply on the basis that the landowner did not want walkers on his land.

Earl Peel

My Lords, my amendment substitutes the word "may" for "shall". The relevant part is, if the authority are satisfied that the exclusion or restriction under this section of access by virtue of section 2(1)…is necessary". It seems to me rather peculiar that it is only "may". Having made the decision or having decided that it was appropriate, I would have thought that it would only be appropriate for it to carry it out and the word "shall" would be appropriate.

Viscount Bledisloe

My Lords, perhaps I may add to that. The noble Earl's point is already governed by subsection (3). In deciding whether it is necessary, one looks to see for what purposes he has used the existing 28 days. Having decided that he has used them properly and needs more, surely the noble Earl, Lord Peel, is right to say that it should be "shall". I believe that the Minister's point deals with that.

Lord McIntosh of Haringey

My Lords, one has to read Amendment No. 121 with Amendment No. 122 in particular as well as Amendment No. 125 unless the noble Earl really means to move Amendment No. 121 without moving Amendment No. 122. I appreciate that they are separate amendments, but the effect of what the noble Earl wants is to change Clause 22(1) to say, the relevant authority shall by direction". The end of the same sentence is that it is "necessary" or "expedient". The noble Earl spoke to the amendments together and I responded to them together.

Lord Brittan of Spennithorne

My Lords, does not the noble Lord agree that they are separate amendments and that it is perfectly open to the Government to say that they do not accept the point about substituting "expedient" for "necessary" for the reasons given by the Minister, but that they do accept Amendment No.121 because once the relevant body has found that what is asked for is necessary, it jolly well should do it. It would be perfectly open to the Government to say that they accept Amendment No. 121, but not the other. That is what I invite them to do if they are not persuaded on the expediency point.

11.30 p.m.

Lord McIntosh of Haringey

My Lords, I responded to the way in which the amendments were spoken to—as a coherent whole. I accept that the noble Lord is right and that I could separate them out. If the noble Earl, Lord Peel, wishes to do so, then let me say that I do not accept Amendment No. 121 or Amendment No. 122—because this retains the discretion for the authorities.

Earl Peel

My Lords, the point is that they have the discretion. Once they have made the decision that a request for closure is appropriate, surely they should then carry it out, and "shall" should be substituted for "may". It could not be simpler.

Lord McIntosh of Haringey

My Lords, I have been in this House for nearly 18 years and I do not think there has been a month when there has not been a "may"/"shall" debate. Relevant authorities must have a clear discretion to take into account all of the circumstances in each case. "May" makes that clear.

Lord Brittan of Spennithorne

My Lords, the noble Lord is perhaps bemused by the length of his experience. The wording laid down by the Government, if the authority are satisfied", that the exclusion is necessary, gives the authority the full power of discretion. If the authority is not so satisfied, nothing further happens; but if is so satisfied and exercises its discretion in that favour, surely it is right that it should be required to make the direction.

I hope that, even at this hour, the Minister will separate the two amendments, and indicate why this proposal is objectionable. I do not think that any point of policy turns on it. It is a question of clarifying the position rather than anything else. I hope that the Minister will accept that if we were trying to introduce some change of policy or balance, we should say so; but that is not the case.

Lord McIntosh of Haringey

My Lords, I already risk abusing the conventions of the House at Report stage. I do not accept that. I believe that discretion is paramount. The effect of the amendments, individually and collectively would be, by stealth, to extend the 28-day period.

Earl Peel

My Lords, I do not like being accused of trying to extend the closures by stealth. The amendment is perfectly clear. There is a contradiction in terms. In view of the Minister's wholly unsatisfactory answer, I should like to test the opinion of the House.

11.32 p.m.

On Question, Whether the said amendment (No. 121) shall be agreed to?

Their Lordships divided: Contents, 33; Not-Contents, 77.

Division No. 3
Allenby of Megiddo, V. Mackay of Ardbrecknish, L
Attlee, E. Monson, L.
Bledisloe, V. Montrose, D.
Brittan of Spennithorne, L. Murton of Lindisfarne, L.
Brookeborough, V. Northbourne, L.
Byford, B. Northbrook, L.
Northesk, E.
Colwyn, L. Norton of Louth, L.
Craig of Radley, L. Palmer, L.
Craigavon, V. Peel, E. [Teller]
Crathorne, L. Rotherwick, L.
Dean of Harptree, L. Selborne, E.
Dundee, E. Selsdon, L.
Glentoran, L. Skelmersdale, L.
Henley, L. [Teller] Skidelsky, L.
Luke, L. Walpole, L.
Lyell, L. Willoughby de Broke, L.
Acton, L. Hoyle, L.
Ahmed, L. Hughes of Woodside, L.
Amos, B. Hunt of Chesterton, L.
Andrews, B. Hunt of Kings Heath, L.
Bach, L. Irvine of Lairg, L (Lord Chancellor)
Bassam of Brighton, L. Janner of Braunstone, L.
Berkeley, L. Lea of Crondall, L.
Bernstein of Craigweil, L. Lipsey, L.
Billingham, B. Macdonald of Tradeston, L.
Borrie, L. McIntosh of Haringey, L. [Teller]
Brett, L. McIntosh of Hudnall, B.
Brooke of Alverthorpe, L. MacKenzie of Culkein, L.
Brookman, L. Mackenzie of Framwellgate, L.
Burlison, L. Mallalieu, B.
Carter, L.[Teller] Mitchell, L.
Chandos, V. Nicol, B.
Clarke of Hampstead, L. Parekh, L.
Cocks of Hartcliffe, L. Patel, L.
Cohen of Pimlico, B. Plant of Highfield, L.
Crawley, B.
Davies of Coity, L. Puttnam, L.
Donoughue, L. Ramsay of Cartvale, B.
Dubs, L. Rea, L.
Elder, L. Rendell of Babergh, B.
Evans of Parkside, L. Sainsbury of Turville, L.
Farrington of Ribbleton, B. Sawyer, L.
Faulkner of Worcester, L. Sheppard of Liverpool, L.
Gale, B. Smith of Leigh, L.
Gibson of Market Rasen, B. Stone of Blackheath, L.
Goldsmith, L. Thornton, B.
Gordon of Strathblane, L. Tomlinson, L.
Goudie, B. Turnberg, L.
Gould of Potternewton, B. Warner, L.
Grenfell, L. Warwick of Undercliffe, B.
Hardy of Wath, L. Whitaker, B.
Harris of Haringey, L. Whitty, L.
Harrison, L. Wilkins, B.
Hayman, B. Williams of Mostyn, L.
Howells of St. Davids, B. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

11.42 p.m.

[Amendments Nos. 122 to 129 not moved.]

Clause 23 [Avoidance of risk of fire or of danger to the public]:

Earl Peel moved Amendment No. 130: Page 14, line 4, leave out ("exceptional conditions of weather") and insert ("combination of the conditions of the weather, the ground or the vegetation on the land").

The noble Earl said: My Lords, this amendment includes more specific reference to conditions of the ground and vegetation as well as to the weather. I believe that the Government must allow for closure where the weather is fairly normal but where the fire risk is high. Many of the areas involved will comprise SSSIs, SPAs and SACs and moorland of international importance. Are the Government saying that precautionary closures on these areas should not occur where a combination of factors means that the fire risk is high?

Fire effects can be catastrophic, as many of us have seen over the years. I recall the fire on Rosedale Moor in 1976. That moor has still not recovered. Fire is a debilitating factor and has considerable impacts on nature conservation. Exceptional weather conditions suggest prolonged drought. "Exceptional conditions of weather" is the phrase used in the Bill as at present drafted. That is simply not enough. We have to take into account these other factors. I hope that the Government will look carefully at the issue. I do not look for extensions on closure orders. I simply seek to address the important issue of fire which I do not believe is properly addressed in the wording of the Bill as drafted. I beg to move.

11.45 p.m.

Baroness Young of Old Scone

My Lords, the noble Earl has a point. Where weather conditions may not be right for closure through fire risk other issues might come into play. Heathland can be at risk because the older and woodier heather is exceptionally combustible; or peat may have dried out over a long period of time. There are circumstances where a broader index is taken into account. The Meteorological Office Rainfall and Evaporation Calculation System (MOREX)—it gives objective and quantitative risk status taking into account a number of issues—is used at present with regard to closures for fire risks in the Peak and North York Moors National Parks.

Before Third Reading, the Minister might consider the need for some expansion of the explanation relating to closures for fire risk.

Lord Greaves

My Lords, I shall not repeat what I said in Committee. However, I do not understand why the Government are not prepared to look at some alternative wording. My preference would be to refer in general terms to conditions giving rise to a fire risk, ignoring reference to weather and so on. I ask the Government to consider the issue again. It is common sense. There is no deep ideological divide. The provision in the Bill is not right at present.

The Duke of Montrose

My Lords, I apologise to your Lordships for not being in my place earlier to move my amendment. My organisation was such that the two people whom I asked to move it in my absence were both unable to do so.

I support my noble friend's amendment. We have a moor which suffers from lack of proper maintenance. In some ways it reflects what the noble Baroness, Lady Young, said. The moor has become heavily infected with heather beetle. Instead of large woody heather, there is an enormous amount of dry tinder-like heather with no life in it. If huge areas like that developed, it would be a greater fire risk at times when there was no danger from extreme weather.

Lord McIntosh of Haringey

My Lords, I do not think that we have any disagreement about the need to avoid fires and to deal with fire risk, just as we have no disagreement about the need to deal with exceptional weather conditions. The amendment would allow any combination of conditions of the weather, the condition of the ground or the vegetation on the land to be taken into account. We are in danger of descending into theology here if we seek to cover every possible eventuality.

We believe that the provision in Clause 23 will cover all those cases where there is a legitimate need for restrictions or exclusion of access. It will be necessary to look at the weather in conjunction with the condition of the land and the vegetation: the noble Earl, Lord Peel, is right. But the weather conditions are the key to the exercise of the power. There will be situations where the risk of fire becomes most serious some considerable time after the exceptional weather, such as a prolonged drought, but the risk will still be due to that earlier exceptional weather and will still fall within Clause 23.

As we said in Committee, there may be other circumstances in which there is a possible fire risk that has not arisen because of the exceptional weather conditions. For example, some types of vegetative cover may be flammable even in an ordinary summer. Those conditions are not exceptional and, by definition, they are not caused by usual weather conditions. They are part of the normal fabric of the open countryside and I am not satisfied that they give enough reason to restrict access to the land.

The noble Baroness, Lady Young, referred to the Peak District National Park and North Yorkshire. The Peak District park has powers to exclude access at times of high fire risk under the same circumstances as provided for in Clause 23(1)(a). We are not aware of any representations that the powers have been inadequate. The Countryside Agency is working with the Meteorological Office to develop an early warning system. That may be what my noble friend referred to, although I did not catch the acronym. It will take account of weather and ground conditions and enable the relevant authority to assess whether a direction for a closure should he made. The system would be similar to that which currently operates successfully in the Peak District.

As we explained in Committee, if we allowed restrictions of public access in the generalised circumstances described in the amendment, many parts of the countryside could be closed to the public during most of the summer months when most people are likely to visit it. I am prepared to consider whether there is any mileage in pursuing the suggestion made by the noble Lord, Lord Greaves, of making a particular reference to fire risk as a subordinate consideration, but putting the three on an equal footing, as the amendment would, is not justified.

Earl Peel

My Lords, I am somewhat confused because I think that the Minister gave an assurance that ground conditions and the vegetation on the land would be taken into consideration by the local authority when assessing whether it was appropriate to close an area because of fire risk. If he can assure us that authorities will take that into account, I do not understand why he does not accept the amendment. However, that is as may be.

I have no intention of dividing the House on the issue. I am encouraged by the remarks of the noble Lord, Lord Greaves, and by the fact that the Minister has said that he is prepared to look at the issue again in the light of what the noble Lord has said. Given those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 [Nature conservation and heritage preservation]:

[Amendment No. 131 not moved.]

Baroness Byford moved Amendment No. 132: Clause 24, page 15, line 6, at end insert— ("( ) the purpose of preventing erosion of any track across the land which is used by persons exercising the right granted under section 2(1), or for repairing any damage caused by erosion to any such track;").

The noble Baroness said: My Lords, in Committee the noble Earl, Lord Selborne, who is no longer in his place, raised his concerns that unlimited access may cause damage to sensitive areas. The Minister said that such damage would come under Clause 22, which is the land management clause. However, on reflection I am still uneasy as to whether that clause is adequately worded to cope with such circumstances.

Erosion needs to be tackled swiftly if major and costly repairs are to be avoided. I beg to move.

Baroness Farrington of Ribbleton

My Lords, government Amendment No. 134 is consequential on the formal change of name of English Nature in Clause 68. As we said in Committee, we have tabled an amendment to change the reference to the "Nature Conservancy Council for England" in Clause 24(6)(a)(i) to "English Nature", which is the name by which that body is generally known. That is consistent with the changes that have already been made to other parts of the Bill.

Amendment No. 132 would introduce a new criterion for the making of directions under Clause 24 for the purposes of preventing erosion of any track or for repairing damage caused by erosion to any such track. Perhaps I may offer some reassurance. Stopping or preventing further erosion may well be the purpose of a direction under Clause 24. In addition, if problems of erosion arise in particular areas, it, will be open to those affected to seek restrictions on the right of access by means of directions under Clause 22 in order to secure the effective management of the land.

Those affected may also wish to seek agreement with access authorities under Chapter III of the Bill for the construction of a new means of access which, in conjunction with strategically placed notices or information points, could be used to guide walkers away from sites which a landowner believes are susceptible to erosion. Therefore, in practice Amendment No. 132 is unnecessary and I hope that the noble Baroness will not press her amendment.

Baroness Byford

My Lords, I am grateful to the Minister for her response. I am reassured by her words and, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 133 not moved.]

Baroness Farrington of Ribbleton moved Amendment No. 134: Page 15, line 23, leave out ("the Nature Conservancy Council for England") and insert ("English Nature").

On Question, amendment agreed to.

Clause 25 [Directions by relevant authority: general]:

Lord Whitty moved Amendment No. 135: Page 15, line 35, at beginning insert— ("( ) Before giving a direction under section 22, 23 or 24 in relation to land in an area for which there is a local access forum so as to exclude or restrict access to the land—

  1. (a) indefinitely, or
  2. (b) during a period which exceeds, or may exceed, six months,
the relevant authority shall consult the local access forum.").

On Question, amendment agreed to.

Clause 30 [Regulations relating to exclusion or restriction of access]:

Lord Whitty moved Amendment No. 136: Page 18, line 26, at end insert— ("(aa) as to the steps to be taken under section (Dogs on certain land)(1) and (2),").

On Question, amendment agreed to.

[Amendment No. 137 had been withdrawn from the Marshalled List.]

Clause 31 [Guidance by countryside bodies to National Park authorities]:

[Amendment No. 138 not moved.]

Clause 32 [Interpretation of Chapter III]:

Baroness Hamwee moved Amendment No. 138A: Page 20, line 5, after ("land)") insert ("or on the land").

The noble Baroness said: My Lords, in moving Amendment No. 138A, I wish to speak also to Amendment No. 138B. These amendments relate to Chapter III and deal with means of access. They seek assurances that the definition of "means of access", in particular in relation to fences or hedges which bound land and items on the land, covers not only fences and hedges around the edge of a parcel of land but includes, for example, walls and fences which cross a particular parcel of land. The amendment simply seeks that assurance. I beg to move.

Lord Whitty

My Lords, I am happy to give the noble Baroness that assurance. Clause 32 as it stands covers means of access in relation to appropriate places within access land. Means of access includes an opening, gate or stile bounding the land or part of the land. The reference to "part of the land" means access from one part of access land to another and, therefore, in the noble Baroness's terms, within the access land. Therefore, that is already covered.

Baroness Hamwee

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 138B not moved.]

Clause 35 [Provision of access by access authority in absence of agreement]:

Lord Whitty moved Amendment No. 139: Page 21, line 26, after ("land") insert (", or to other access land,").

The noble Lord said: My Lords, in moving Amendment No. 139, I wish to speak also to Amendment No. 140. These are minor amendments. Amendment No. 139 makes it clear that access authorities must serve a notice of intention to carry out works relating to a means of access in respect of any access land where the means of access is required to facilitate access to other access land. The Bill currently provides only that such a notice may be served to secure means of access to the access land in question.

Of course, such a notice may be issued only provided that the access authorities have sought, and have been unable to reach, an agreement with the owner or occupier regarding the means of access.

Amendment No. 140 fulfils a commitment made in Committee to provide that owners or occupiers may appeal against such notices on grounds that a different means of access should be provided. That proposal received support in Committee and, therefore, I hope that the amendments will be welcomed. I beg to move.

Baroness Hamwee

My Lords, our Amendment No. 139A is in the same group. This clause deals with the provision of access by the access authority where there is no agreement. We were concerned to ensure that the position between the introduction of the Bill and its coming into force is covered. In other words, one could look on this as a sort of anti-avoidance provision. I believe that the Bill was introduced into another place on 3rd March of this year, which is why that date is used in the amendment.

We are concerned, for example, that a landowner who in the past has had some simple means of access such as a makeshift bridge made up of a couple of planks, because of concern about danger to the public, rather than providing a more substantial bridge would simply remove it. While we welcome the clause and the amendments, we wish to cover the actions which may be taken by a worried, not necessarily malevolent, landowner in the position from now until this Bill is enforced.

Lord Whitty

My Lords, this amendment is unnecessary. Access authorities may take action where it appears to them that a means of access needs opening up. That would include a situation where a previous means of access has been removed, destroyed or has become dangerous. Therefore, that is covered by a combination of the Bill as it stands and the amendments which we have just moved.

In addition, as my amendments indicate, there must be an attempt to reach agreement with the landowners, and that is not fully reflected in the amendment. In any event, it is unnecessary.

On Question, amendment agreed to.

[Amendment No. 139A not moved.]

Clause 36 [Appeals relating to notices]:


Lord Whitty moved Amendment No. 140: Clause 36, page 22, line 19, after ("elsewhere") insert (", or that a different means of access should be provided").

On Question, amendment agreed to.

Clause 38 [Powers of entry for purposes of Part I]:

Lord Glentoran moved Amendment No. 141: Clause 38, page 23, line 36, at end insert— ("( ) for the purposes of removing litter, or ( ) for the purposes of removing waste dumped therein").

The noble Lord said: My Lords, this amendment concerns the removal of litter. One of the problems with the Bill, particularly in Part I, is that it is very difficult to insert anywhere clauses which actually lay duties on anyone other than the owner or occupier. Another is perhaps that the Bill still does not totally recognise a number of the well-known problems inherent in running the countryside.

We have had debates during the passage of the Bill about litter and the dumping of waste. The problem is well understood and accepted on all sides of the House. But we do not seem to have a satisfactory means of managing it. The Royal Institution of Chartered Surveyors said in its policy on the implications of enhanced access: There have been litter problems in areas where people walk, such as the long distance routes and paths. Even in remote areas such as the Lyke-wake Walk, litter is dropped along the route. It is often impossible to catch the perpetrator, so the provision in the Bill to give them trespasser status for a day will not be a practical solution. The new arrangements must contain provisions for the collection of litter".

That is the intention behind the amendment. I hope that the Government will see a way of accepting this and helping to solve that inevitable problem. I beg to move.

Lord McIntosh of Haringey

My Lords, perhaps I may take the opportunity to respond to Amendment No. 141 and to speak also to government Amendments Nos. 142 and 143. I shall deal with Amendment No. 141 first, as we all share the concern about litter. The noble Baroness, Lady Farrington, made clear in Committee that we take the matter seriously. We are looking at measures both to help prevent it occurring in the first place, which is clearly the ideal, or, failing that, to deal effectively with it where it does occur.

Leaving litter on access land will be a criminal offence under the Environmental Protection Act 1990 liable to a fine of up to £2,500 in the magistrates' court.

We envisage that mainly it will require only a light touch. Open land is not a country park. There are large tracts of moor and other open country where only the more adventurous will go. But there will be some areas which have been off limits in the past which will become popular. It is particularly in those areas that litter could become a problem. The Countryside Agency is discussing with us how the right of access can best be implemented and managed. We are considering the need for a specific grant regime to help fund effective management of access on the ground or example through signs, information and other facilities. That kind of grant may also be the appropriate mechanism for funding action to prevent or clear litter which has resulted directly from the new right of access. The grant fund would be in addition to the resources which local authorities will have to meet their responsibilities under the Bill; for example, the provision of wardens or new and improved means of access.

That is how we plan to tackle litter problems which may arise, but we are still open to other suggestions and were interested to hear the comments of the noble Lord, Lord Glentoran.

I turn to Amendment No. 141. If there is a problem with litter and the local highway authority wishes to take action, it can enter the land concerned with the agreement of the occupier. I do not see why an occupier should object to someone else clearing litter or rubbish on his land. Alternatively, a warden can be appointed and one of the duties could be the removal of litter. Wardens will have the power of entry under the Bill. Therefore, I do not think that the amendment is necessary and I hope that it will not be pressed.

I turn to government Amendments Nos. 142 and 143, which make consistent what public bodies may do under Part I and Part III of the Bill in carrying out their legal responsibilities and what provision should be made for compensation if they cause damage.

Amendment No. 143 reflects our agreement to consider a similar amendment tabled by the noble Lord, Lord Glentoran, in Committee. We accept the principle that if damage is caused by a public body in carrying out its legal responsibilities, a person suffering such damage should be entitled to compensation. That is why we accepted a similar amendment tabled in another place in relation to Part III of the Bill.

It is possible that a person authorised by a public body might cause damage, for example, in constructing or repairing a means of access or in erecting a notice. Amendment No. 142 clarifies what authorised persons may do in exercising their powers under this part of the Bill. The provision is similar to Clause 74(6). I commend the amendments to the House.

Lord Northbrook moved, as an amendment to Amendment No. 143, Amendment No. 144: Line 14, leave out paragraphs (a) and (b) and insert— ("by the President of the Royal Institution of Chartered Surveyors").

The noble Lord said: My Lords, I rise on behalf of my noble friend Lord Caithness to move Amendment No. 144 as an amendment to Amendment No. 143. Amendment No. 144 states that any dispute as to a person's entitlement to compensation under this clause or as to its amount should be referred to an arbiter to be appointed in default by the president of the Royal Institution of Chartered Surveyors.

The intention of the amendment is to create an independent arbiter outside the orbit of government. Originally it was thought that a tribunal might be the best process, but the president of the Royal Institution of Chartered Surveyors has been thought to be appropriate.

As a result, a conflict of interest where a Minister or assembly is arbitrating on the validity of an individual clause in a Government Act is avoided. I beg to move.

Lord McIntosh of Haringey

My Lords, we are debating Amendment No. 141. The noble Lord, Lord Northbrook, spoke to Amendment No. 144 but I need the leave of the House to respond to that amendment, which I now seek.

Of course the Royal Institution of Chartered Surveyors is representative of the surveying profession and has a wealth of experience in dealing with claims in relation to property generally. We do not expect many, if any, of the claims for compensation to arise as a result of the use of the powers of entry under Part I. But we accept that the Secretary of State or the National Assembly for Wales may decide that chartered surveyors are the most appropriate people to act as arbitrators. We would not wish to fetter their discretion to decide on whom to appoint.

Having heard and paid serious attention to the point made by the noble Lord, Lord Northbrook, about the potential for conflict of interest, which we accept, nevertheless we believe that the Secretary of State or the National Assembly for Wales should retain responsibility for appointing arbitrators.

Lord Glentoran

My Lords, I speak once again to Amendment No. 141. The difficulty with littermongers is that one can never catch them.

Having said that, I welcome the Minister's positive and helpful comments. It is good to know that the Government understand and accept the problem and indeed that they are not only thinking about it, but are clearly thinking of putting some money where it is necessary and I am grateful for that.

I omitted to thank the Minister when I moved Amendment No. 141 for his Amendment No. 143 in response to my original Amendment No. 299. I am extremely grateful and delighted that the Government made that concession and welcome both Amendments Nos. 142 and 143. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 142: Clause 38, page 24, line 12, at end insert— ("(4A) A person acting in the exercise of a power conferred by this section may—

  1. (a) use a vehicle to enter the land;
  2. (b) take a constable with him if he reasonably believes he is likely to be obstructed:
  3. (c) take with him equipment and materials needed for the purpose for which he is exercising the power of entry;
  4. (d) take samples of the land and of anything on it.
(4B) If in the exercise of a power conferred by this section a person enters land which is unoccupied or from which the occupier is temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry as he found it.").

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 143: After Clause 38, insert the following new clause—