§ (" .—(1) Where it appears to an access authority that a person has repeatedly or persistently failed to comply with Schedule 2 or with any restriction imposed under Chapter II, or committed an offence or offences and acted in contravention of byelaws on any access land, the access authority shall take such steps as appear to it to be appropriate to prevent or reduce future such failures, offences or breaches.
§ (2) For the purposes of subsection (1), an access authority shall be entitled to all such remedies and reliefs as would have been available to the owner of, or any person interested in, that land.").
§ The noble Viscount said: My Lords, on the first day of the Report stage, we had a series of debates as to what was to be done about people who persistently disregarded the rules controlling the right of access. Everyone in this House recognises that most of those exercising the right of access will want to obey the rules, that any transgression will be inadvertent and that when it is pointed out to them they will apologise and obey.
§ Equally, everyone—certainly the noble Lord. Lord McIntosh—accepts that there will inevitably be a few people who will transgress, who will not mend their ways when the rules are pointed out to them and who will be deliberately and persistently unco-operative. They will undoubtedly be relatively few, but they are the ones who will cause the aggravation and resentment. We have debated at some length the question of what is to be done about such persons.
§ The fact that most people obey the law does not mean that we do not take steps to stop those who do not. The vast majority of people do not commit murder; but that does not mean that we need not do anything about the few who do. I do not suggest that this is comparative. What I am saying is that one needs some form of mechanism to deal with people who persistently flout the rules.
§ The Government in their wisdom have determinedly refused to accept that flouting the rules could constitute either a criminal offence or provide grounds for an exclusion order. They say that this is a matter for the civil law of trespass and that the proper remedy in relation to someone who persistently flouts the law is an injunction. I am not wholly convinced by that argument. However, in this amendment I bow wholly to it, accept it and advance a method of dealing with the situation. It is in a genuine spirit of compromise that my amendment accepts the government position but says that, where there is a persistent offender, it is for the access authority to take the steps which it thinks appropriate. That is important to stop further breaches and to deal with the persistent offender who shows no signs of giving up his conduct.
§ No doubt, if the amendment were enacted, the first step of the authority would be either a letter to the offender or a visit by, let us say, a warden, or both. As the visit or the letter would come from a public authority, no doubt in many cases it would be sufficient to deter the offender and cause him to mend his ways. But in circumstances where it did not, the 1443 amendment is backed by the final resort: the access authority being able to seek an injunction against a persistent offender and being entitled to such relief wherever the occupier of the land would himself have been entitled. In my respectful submission, my amendment is better and fairer in all respects in enabling and requiring the authority to do this. First, obviously, the authority will have a lot more clout than an individual owner. Secondly, the authority will know how to deal with the matter. It will have legal advisers and so on, who will be able to point it in the right direction to obtain an injunction if it needs to do so, and to write suitable letters.
§ It is a daunting prospect for some tenant farmer whose sheep are being regularly chased or whose land is regularly being used for rave-ups, or whatever it may be, to see a solicitor and to be told that he must take injunction proceedings but that they will cost a great deal and the court may not give him the costs, that he will have to swear affidavits and so on. A tenant farmer, especially in the present climate of farming, has got better things to do with his time; and, indeed, probably does not have the money to do what will be required.
§ Surely it would be much fairer if the costs of dealing with a persistent offender were borne by the authority rather than by the individual. He did not want people on his land in the first place: it is the Government who have decided to let them go there. But if those people decide to misbehave, surely the public authority should take steps to deal with the situation.
§ I have wholly accepted the Government's position that this matter must be dealt with under civil law. I am simply saying that it should be for the access authority to take the steps that it believes to be "appropriate" to deal with the situation. If the offence is merely minor or technical, the authority can say to the owner, "Look, we know that that is strictly a breach, but it has not done any harm so let's forget it". If the matter is deemed to be more serious, the authority can approach the person concerned and try to persuade him to stop. However, if nothing will stop conduct that is seriously harmful, then, as a last resort, the access authority could apply to the courts for an injunction to which the occupier would have been entitled.
§ I sincerely hope that the Government will accept that this as a serious, mid-way solution to trying to deal with this highly intransigent problem. As we have repeatedly said, unless the problem is solved in some way it will haunt this Bill for all time. If nothing can be done about a persistent offender, that will be a running sore that will wreck the co-operation that would undoubtedly, in everyone's mind, be the best way forward for this Bill. I beg to move.
§ Earl Peel
My Lords, I shall speak briefly in support of the noble Viscount's amendment. As he said, we have failed to persuade the Government that there should be some resort to criminal sanctions against those who persistently disregard the arrangements under Schedule 2 and Chapter II. As the noble Viscount said, it seems to be an extremely modest 1444 amendment. If the access authorities were given the powers afforded to owners, I believe that people would perhaps take them more seriously. Indeed, we might go some way towards overcoming this deep-rooted problem within the Bill. Unless we can resolve it in some way, shape or form, the opportunities for conflict and bad feeling—something that we must try to avoid—will not be covered.
The noble Viscount also referred to the question of costs being borne by the authorities. That, too, is a most important consideration. There are undoubtedly quite a number of owners and occupiers who may be affected by those who persistently ignore the restrictions under Schedule 2 and Chapter II, but who simply do not have the resources to pursue a civil action. I hope that the Government will accept this amendment. It is a modest compromise but one which I believe would go quite a long way towards solving a problem that, quite frankly, needs to be solved if the Bill is to be effective.
§ 8.45 p.m.
§ Lord Monro of Langholm
My Lords, I support the remarks made by the two previous speakers. There should be some point of last resort—some sort of provision—to deal with the situation, or one or two people could bring this legislation into disrepute by continually disobeying the rules because there is no sanction to stop them doing so. Bad publicity in press reports featuring those people would do the legislation an immense amount of harm. River wardens have much stronger powers than those that we are offering to wardens in this Bill, but they have the same sort of objective: they are stopping poaching, whereas our wardens will be stopping people from misbehaving on access land.
As my noble friend Lord Peel said, this is a modest sanction. However, it is a provision that can only do good. I cannot see any reason that it could be accused of causing harm. I know that the Minister will talk about criminalisation, and so on, but this amendment would not do that. All we are asking is that the access authority should use its authority to deal with the transgressor. We do not suggest that that should be done by way of taking the offender to court to face a fine or worse. The fact that an authority would be able, with the full backing of its powers, to write a formal letter, or, as the noble Viscount, Lord Bledisloe, to send a warden to see the offender, would surely have more effect on an individual than just saying, "Look here, you mustn't do that again for 72 hours".
§ Baroness Carnegy of Lour
My Lords, I should like to support this amendment. I do so mainly because I believe that the small farmer will feel desperate if nothing can be done in these circumstances. The news that he is desperate will get around among other farmers, which will badly damage the scheme. I can see from the noble Lord's face that he is very cross with me 1445 for intervening. However, he needs to realise that people will feel pretty desperate about this, and that is not a very nice feeling.
§ Baroness Byford
My Lords, I, too, support the noble Viscount, Lord Bledisloe. I talk to many different farmers, and those who live in rural areas, on my travels around the countryside. The one matter that is permanently raised is the whole question not just of crime but of an uneasiness in the countryside. I can only beg the Government to consider this sympathetically. I do not like to prejudge what the noble Lord will say; indeed, perhaps he will say that it is a great amendment and accept it. However, if he is unable to do so, perhaps he could tell us how the Government envisage coping with the problem.
I believe that all quarters of the House have accepted that it is only a small minority of people who could ruin this Bill and spoil enjoyment of the countryside for the vast majority. If such amendments as the one now before The House—which, it is to be hoped, will deal with persistent offenders—are not accepted, how will the Government make it possible for the vast majority to enjoy the countryside when just a few may well disrupt that enjoyment? I hope that the Minister will he able to accept the amendment.
§ Baroness Young of Old Scone
My Lords, I must voice some concern about this amendment. Although I share the view that there needs to be some provision for what I would define as "wilful and persistent offences", especially against restrictions or exclusions imposed under Chapter II of the Bill, I do not believe that this amendment would achieve that aim. It starts off well by defining all the activities that people might do persistently and wilfully, but then it seems to peter out at the end with a kind of wishy-washy back end. The issue of persistent and wilful failure to comply with restrictions or exclusions imposed under Chapter II is sufficiently serious to need something more robust than the provisions suggested in this amendment. Although I cannot support the amendment, I believe that the concerns that have been expressed about persistent and wilful infringement are very valid.
§ Viscount Bledisloe
My Lords, before the noble Baroness concludes, can she tell me what she would do about my "wishy-washy back end"? I am delighted to be told that my back end is wishy-washy, but it would be a great help if the noble Baroness could say what should be done about persistent offenders. I agree that my amendment may be rather wishy-washy, but I cannot persuade her Front Bench to accept anything more forceful. I should like some guidance from the noble Baroness as to what she thinks should be done about wilful and persistent offenders.
§ Baroness Young of Old Scone
My Lords, I understand why my noble friends on this Front Bench would be unable to accept some of the broader provisions in the first part of the amendment. It seems to me that we should not criminalise some of the failures to comply with the restrictions in Schedule 2. 1446 It is more important to narrow down the offences to the wilful and flagrant breaking of restrictions or exclusions that have been imposed after a very thorough process of consultation. I believe that one could narrow this down and take out the words,committed an offence … and acted in contravention of byelaws",for which there are already clear penalties provided in law. I do not think that we need to introduce anything further to back up by-laws or situations where an offence has clearly been committed. However, as regards restrictions or exclusions under Chapter II which are aimed at preventing things from happening rather than closing the door after the horse has bolted, and where damage has already occurred, there ought to be some rather stronger sanction which does not criminalise many of the provisions of the Bill but simply focuses on specific conditions and defines in some way "wilful and persistent" and produces a criminal offence.
§ Lord McIntosh of Haringey
My Lords, I demand witness protection against the noble Baroness. Lady Carnegy. I did not think that I moved a muscle in my face. It is clear that I am a bad poker player. However, I do not think that I can be expected to sit on the Front Bench hour after hour with the face of a sphinx.
Surely we have already shown in response to what the noble Viscount, Lord Bledisloe, said at earlier stages of the Bill—I pay tribute to his persistence in pursuit of persistent offenders—that we have positive proposals to deal with this problem. We have shown that in our response to the amendments on wardens and in Amendment No. 96—which has just been accepted—which widens the purposes for which wardens are to be employed. We have done all of those things. We have said that we expect authorities to make by-laws when they consider that that would help.
The noble Baroness, Lady Byford, asked me how the Government would cope with these problems. The Government will cope with them in a number of ways. The authorities could use these powers even where the problems caused resulted from the actions of only one person, for example, someone who visits the land most days and always leaves the gate open. I take that to be one version of being a persistent offender. The access authority could ask a warden to patrol the area in question. The warden will be able to inform the user of their rights and their responsibilities under the new right and may, if authorised by the owner, require the person to leave the land. Any such person will lose his right of access for the next 72 hours—that is another change that we have made during the passage of the Bill—so should he return the next day he will immediately be a trespasser and the warden would be able to respond.
Local authorities have existing powers to seek injunctions under Section 222 of the Local Government Act 1972 where it is,expedient for the promotion or protection of the interests of the inhabitants of their area".I acknowledge that this does not give them the same powers as the owner of the access land would hake, but it does give them powers to seek injunctions to restrain 1447 further conduct that would otherwise be unlawful or criminal and which is contrary to the interests of the wider community. This could include circumstances where someone persistently infringes Schedule 2 restrictions or restrictions imposed under Chapter II. We believe that the test in the 1972 Act is correct. It would not be right for local authorities to seek to enforce in the courts all cases of trespass arising under Part I. I have warned on many occasions during the course of this Bill against trying to meddle with the law of trespass which has survived many centuries of those who would wish to make it a more criminal procedure.
However, this amendment would require action to be taken—
§ Earl Peel
My Lords, I am not absolutely certain what the noble Lord is saying. As I understand the position, the amendment of the noble Viscount, Lord Bledisloe, simply gives the access authority powers that at the moment are vested in the owner. That in no way would allow the access authority to try to criminalise trespass, other than the fact that the perpetrator of a crime might commit a criminal offence. Trespass is still trespass and there is no criminal offence against it; it is just a question of transference of power.
§ Lord McIntosh of Haringey
My Lords, I shall come on to the exegesis of the amendment in a moment but it comprises a requirement. It states,shall take such steps as appear to it to be appropriate".The amendment requires action to be taken regardless of the seriousness of the breach, although it leaves unspecified what the action should be. County councils and national park authorities would be required to take action to stop any breaches of restrictions and the commission of any criminal offences. This would not be practical or desirable. It is in general for the prosecuting authorities, and in particular the police force, to enforce the criminal law and prosecute where it is right to do so.
Apart from the access authorities, the countryside bodies and others have an important role to play in dealing with persistent breaches. For example, where there is a widespread and serious problem of damage being done in an area, it may be appropriate for the relevant authorities—not the access authorities—to make a direction excluding all access under the right for at least a period. We shall debate shortly the information duty which is to be placed on the countryside bodies. Information and education will be key to ensuring that public access does not cause problems.
I appreciate that noble Lords who support the amendment have recognised that we are talking here about a small minority of the people who will enjoy, and benefit from, the right of access. That is a valuable recognition and one which brings us closer. However, I caution the House against proposing further powers against persistent offenders along the lines proposed by the amendment. All the way through the Bill we 1448 have adopted a light touch, both for users of the right of access and landowners. If we were to accept the amendment, surely in balance we would require access authorities to take action against landowners who wilfully and persistently obstruct or frustrate access. There are some who would like to do that, but I suggest that to criminalise what can normally and almost always be dealt with in a less severe manner would be a grave mistake.
§ Baroness Byford
My Lords, before the noble Lord sits down, the amendment of the noble Viscount, Lord Bledisloe, states clearly that the access authority,shall take such steps as appear to it to be appropriate".I should have thought that that was relevant. The amendment does not state that it should always take steps or what steps should be taken. However, where the access authority considers it appropriate to take steps it should have the power to take them. Will the Minister clarify the position?
§ Lord McIntosh of Haringey
My Lords, part of my concern is that the amendment would require the access authority to take steps but does not make clear what those steps should comprise. As King Lear said:We shall do such things, what they shall be I know not, hut they shall be the terror of the earth".
§ 9 p.m.
§ Viscount Bledisloe
My Lords, it is an extraordinary position where in consecutive sentences from the Labour Benches, on the one hand, one is accused of being too wet and, on the other hand, one is accused of being too stringent. One might take that as a rather good demonstration that one had the position about right.
I say with respect that the Minister's answer is one of the most unsatisfactory I have heard in some years. But before I discuss that I say to the noble Baroness, Lady Young of Old Scone, that we are only trying here to deal with wilful and persistent offenders. We include by-laws because it is a well-known fact that occasionally a by-law carries such a small penalty that an offender continues to offend because he considers that to be taken to court and made to pay a £5 fine does not matter. There are well-known cases of that. I refer to the case of a flower seller in Birmingham where recourse has had to be taken to a civil injunction because the penalty for breach of the relevant by-law was so small that the offender deliberately continued with the offence. He preferred to pay the fine rather than obey the law. That is why I included by-laws in the amendment.
However, if a prosecution under a by-law will suffice, that is the step that the access authority can regard as appropriate. It need only have recourse to an injunction if it decides at its discretion that the other steps that can be taken are not appropriate to achieve compliance.
I turn to the reply of the Minister. He said, first, that we shall have wardens and they can inform people of their obligations. However, in Committee he told us 1449 that when he speaks to people on Hampstead Heath about their obligations in relation to their dogs their answers are mainly expletives. He and I politely deleted the expletives from our speeches. A warden may say to a man, "You realise that you should have your dog on a lead", and the reply is, "Well, (expletive deleted) that! I shall take him off the lead". If the warden cannot say, "I shall take some steps about that", he is powerless.
The amendment does not provide enforcement against all trespassers. As the noble Baroness, Lady Byford, said, it requires the local authority only to do what it thinks appropriate. If the local authority thinks that the breach is technical and harms no one, it can say, "Forget it". It may think that compliance can be secured by lesser means—writing a letter, visiting the man, or saying to him, "If you continue to do this, the result will be that you must stay off the land for 72 hours". However, the man may say, "You tell me I cannot come back within 72 hours, but I shall do so". Alternatively, the individual may come back and do the same thing after 73 hours. That provides little consolation to the owner.
In an extraordinary way the Minister then dragged in the criminal law and said that one seeks to "criminalise" the situation. The whole point is that the amendment goes down the route that the Minister has recommended throughout: of keeping to the civil law. The amendment simply provides that where the civil law is appropriate it shall be for the access authority to invoke the civil law if the occupier cannot or will not do so.
The noble Lord talked about the light touch. The light touch is all very well but it is not much good for dealing with the chap who gives two fingers to it. When the individual will not react to the light touch there has to be some scope for a slightly heavier touch. But the amendment does not seek to criminalise anything. It resorts to the civil law.
I have heard the Minister's answer. In normal circumstances I would divide the House. However, I accept that this is the first time the proposition has been mooted. I suggest that the Government consider the issue again. If they do not do so, I give clear warning that I shall return to the matter at Third Reading. 1. beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 19 [Notices indicating boundaries, etc.]:
Baroness Byford moved Amendment No. 97:
Clause 19, page 11, line 21, leave out ("may") and insert ("shall, where reasonably practicable").
§ The noble Baroness said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 102 and 99. I shall not detain the House. Amendments Nos. 97 and 102 speak for themselves. They replace "may" with "shall" making the provision more definite.
Amendment No. 99 would insert,
in particular where a definitive map in conclusive form is not in existence".
Clause 92 lays down the timetable that the Government envisage for the implementation of the Bill because different parts of the Bill will come into force at different times. We spoke about that at some length in Committee. For instance, the general provisions on access, the definition of excepted land and the provisions for controlling the mapping process come into force two months to the day from Royal Assent. The right to enter on to access land and the restrictions to be observed by people doing so will not come into force until the Secretary of State says so.
§ We have heard many estimates of the length of the gap between those two enforcements. I have listened hard but I am not aware that the Government have been definitive, nor that they have taken serious exception to any of the intervals suggested, or even stated whether they intend to authorise Clause 2 over the whole country at once or area by area. Indeed, their thinking may have moved on since we discussed the matter in Committee.
On the other hand, many people outside this I-louse believe already that the Government have granted open access to everywhere—lowland, upland fell land or cultivated fields. I have mentioned previously the Royal Institution of Chartered Surveyors. It mentions this phenomenon in its document on the implications of enhanced access to the open countryside. It states:
Chartered surveyors across the country report members of the public claiming they now have 'freedom to roam' because 'it says so in the paper"'.
Indeed, at the weekend the issue was raised again with me in Norfolk and Suffolk.
§ This situation is with us; it has not gone away. I suspect that it will not go away. Later amendments deal directly with the matter which needs to be tackled. There are issues of safety. Access land may require work to make it safe. There are issues of land management. The occupiers have not yet put into place the alterations necessary to accommodate the public, and have not moved to an alternative location things they wish to retain for themselves.
§ The only people who can make any impression on the problem are the access authorities. The Bill should make it abundantly clear that they have a duty to do so and quickly. We believe that our amendment is a neat method of ensuring that they do. I support Amendment No. 103 which my noble friend Lord Peel will move shortly. I beg to move.
§ Earl Peel
My Lords, I speak to Amendments Nos. 98, 100 and 103. I welcome Amendment No. 101 which the Minister will move. It is a help and provides for owners to be consulted before notices are erected on their land. But I wonder why the words "reasonably practicable" appear. I suggest that the precedent for such consultation is already well established in Section 27(1) of the Countryside Act 1968 which relates to signs showing where footpaths leave metal roads. That Act contains a simple reference to consultation with the owner or occupier and no mention of the words "if reasonably practicable". Why do the Government 1451 want to introduce those words into the Bill? They are unnecessary and create an additional problem for the access authority.
I have no intention of going back over the arguments about the Metalliferous Mines Regulation Act 1872 or the Quarries and Mines Act 1954. We had a good debate in Committee about liability and the additional costs that owners were likely to incur because of the access provisions. Amendment No. 100 is straightforward. It says:An access authority shall take such steps and carry out such work (including the erection and maintenance of fences, signs or notices) as appear to it requisite for protecting the public from any source of danger".Once again, we come back to the thorny question of who will be responsible for protecting the public from such dangers on access land. It is not reasonable that the owner should be responsible. As I explained when we discussed liability, in some cases the landowner could incur considerable expense. The amendment would go some way towards dealing with that, but it would not negate the liability issue. An access authority may decide not to fence the land if that does not appear "requisite", as the amendment says. However, at least the amendment would go some way and would ensure that the authority was responsible for dealing with the problem of dangers on access land.
Amendment No. 103 relates to signs and notices. In Committee my noble friend Lord Jopling demolished a similar amendment, rightly pointing out that it was defective, as it referred to any sign, regardless of its provenance. I hope that the new version will be more acceptable. It may not be necessary, but the point is so important that it needs some airing.
The notices and signs erected under Clause 19 will be essential in getting across information to the public. I hope that they will provide a comprehensive account of any general restrictions under Schedule 2 or Clause 2 and information on any by-laws and access land boundaries. I very much hope that the access authorities will also use them to provide general information about the land and why it is managed in the way that it is. That educational element could help to erode any conflict that might arise.
Unfortunately, signs and notices are too often defaced or removed. I speak from experience on that. Given their vital role for the successful implementation of the Bill, a criminal sanction is required to protect them, if one does not already exist. I look forward with great interest to the Minister's response.
§ Lord Marlesford
My Lords, I am very often on my noble friend's side. I am sympathetic with his wish that the cost of signs should not be borne by the person who owns or occupies the land. However, I am worried about the possible results of the wording of the amendment, particularly the words "shall", "requisite" and "any source of danger".
The countryside should be as unspoilt and as beautiful as possible. I would generally rely on a landowner to respect that view, but I am worried that 1452 a local authority with a statutory obligation expressed in the words of the amendment would go over the top. We could end up with an awful plethora of signs, repetitions of signs and goodness knows what. Frankly, I believe that the landscape is much too precious to take that risk. Therefore, I would not be happy with Amendment No. 100, put forward by my noble friend.
§ 9.15 p.m.
§ Lord McIntosh of Haringey
My Lords, I start by reminding the House that, although grave matters have been discussed in this short debate, Clause 19 concerns notices. It is not a fundamental part of the Bill, although I do not deny that notices can be most valuable as well as, as the noble Lord, Lord Marlesford, said, potentially dangerous.
I speak first to government Amendment No. 101 which provides that, before an access authority erects a notice on access land under Clause 19, it should, where reasonably practicable, consult the owner or occupier of the land. This amendment meets the commitment that we made in Committee to introduce a duty on access authorities to consult, similar to their duty under Section 27(1) of the Countryside Act 1968 to consult before erecting signposts on rights of way.
I was asked why that duty is qualified by "if reasonably practicable". It can often be difficult to assert the identity of the owner or occupier of land, particularly where the land is unregistered and where there is no obvious person in occupation. That does occur in areas of open country. If the requirement were not qualified in that way, the access authority might be required to erect a notice simply to inform "anyone whom it may concern" that it intended to erect another notice using its powers under Clause 19. I believe that the House will agree that that would not make very good sense. Therefore, the qualified requirement meets all reasonable demands for consultation.
I turn to the other amendments in this group. Amendment No. 97 would place a duty on authorities to erect notices indicating the boundaries of access and excepted land and giving information as to the effect of restrictions or other information about access land wherever it is reasonably practicable to do so. What is "reasonably practicable" in this case? I know what the phrase means when it refers to identifying owners. However, in this instance "reasonably practicable" could mean that they should not bump into each other but should be placed apart at a distance, say, of 3 feet. I do not know what is intended.
Our intention is that the authority should be able to erect signs where they are most needed, perhaps at frequently used means of access or locations where the boundary of access land may not be clear. However, here "reasonably practicable" seems to run the risk—again, identified by the noble Lord, Lord Marlesford—of flooding our uplands with unnecessary signs. I do not believe that anyone wants to see that.
We believe that it is right for local authorities to use their discretion in assessing where and when notices are required. As I said, government Amendment 1453 No. 101 places those authorities under a duty to consult, if reasonably practicable, the owners or occupiers of land before erecting notices. Therefore, I believe that we could expect people on the ground, so to speak, to reach sensible agreements without adding this amendment to the Bill.
Amendment No. 98 would require that access authorities should consult,persons interested in the land".Again, I have lent my support to consultation. However, who are persons interested in the land? As I said in Committee, "interest" is defined in Clause 41 as including any estate in land and any right over land, including by virtue of a licence or agreement. That would mean common or sporting rights over the land. It would not be practicable to require consultation with all those interests, of which there could be hundreds in a particular area. The notices would not have any impact on most of the people who would be required to be consulted.
Amendment No. 99 would require access authorities to erect notices,in particular where a definitive map in conclusive form is not in existence".However, the right of access will not come into force until definitive maps are in existence. It would not be appropriate to erect notices before the right comes into force purely to inform the public that they do not have a right of access. That is the only sense that I can make of this amendment.
Amendment No. 100 concerns the safety of those who exercise the new right of access and how it should be protected. We have made clear that those who exercise the new right should take responsibility for their own safety. I believe that that is the fundamental principle to which we must adhere. It is not for government or anyone else to take the necessary steps to ensure that no one is injured, lost or damaged in any way in our countryside. That would be the nanny state carried to absurd extremes. People expect to take risks; they do so now and they will continue to do so. Some people glory in it. I cannot think why, but they do. That is why we have substantially removed occupiers' liability in relation to the natural features of the landscape.
Government Amendment No. 73, to which we have already agreed, removes occupiers' liability in respect of any river, stream ditch or pond, whether or not it is a natural future, and also removes liability in respect of someone suffering injury when climbing or walking through a wall, fence or gate. Government Amendment No. 77 provides for the courts to have regard to, in considering questions of liability, the need to ensure that the new right of access does not place an undue burden on the owner or occupier of land.
I understand concerns that landowners should not be subject to additional costs. But local authorities will have, in some circumstances, powers to remove dangers on land and to make payments to others who carry out works to prevent or remove danger. In addition, land which poses a danger to the public by 1454 virtue of anything done or proposed to be done to the land—such as, for example, quarrying—may be closed to access under Clause 23 of the Bill.
There may be some cases where the landowner is obliged to fence dangers such as quarries. If the noble Earl, Lord Peel, wants to talk about that between now and a later stage, I am happy to do that. But in many cases they already have those duties under existing legislation. There are duties under environmental protection legislation and under health and safety legislation which require landowners or employers to remove dangers.
And of course, access authorities will have the power under Clause 19 to erect notices informing the public of any hazards on the land where the access authority feels that warning is needed. So it is not necessary to give those access authorities a duty to fence off that land.
Finally, Amendment No. 103 would make the removal or defacement of a notice erected under Clause 19 a criminal offence. I agree that notices should be protected from vandalism and I am happy to inform the noble Earl, Lord Peel, that they are already protected under existing criminal law. Section 1(1) of the Criminal Damage Act 1971 provides that a person who without lawful excuse destroys or damages any property belonging to another, intending I o destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged, shall be guilty of an offence.
§ Earl Peel
My Lords, I am grateful to the noble Lord for that. Will he give me an assurance that that criminal activity of removing or defacing a notice will appear in the code of practice? I say that because it is such an integral part of implementing the access agreements that I believe it should be made absolutely clear to everybody that removing or defacing a sign is a criminal offence.
§ Lord McIntosh of Haringey
My Lords, I agree with that and I shall draw the noble Earl's remarks to the attention of those who are drawing up the codes of practice.
Finally, I turn to Amendment No. 102. We have provided that access authorities may contribute to the cost of a landowner erecting a suitable notice or may refund the cost in full. We have not made that a requirement because authorities must be able to use their discretion in judging whether a contribution should be made.
It may well be reasonable for authorities to reimburse landowners who have put up useful and informative signs. But I do not see a need for a plethora—again, I use the word of the noble Lord, Lord Marlesford—of signs on open country, and I do not want to promote such an outcome by providing that signs will always be funded at public expense.
§ Baroness Byford
My Lords, I thank the Minister for his very full reply to the amendments. I smiled slightly when he asked where we got "reasonably practical" 1455 from. Indeed, had I known that in response to my amendment he was going to use the words "most needed", perhaps I should have considered those words to be more appropriate than "reasonably practical". But that is another matter.
I thank the Minister for his response. I am well aware that noble Lords on all sides of the House do not wish to see the countryside swamped with notices. That is something that we certainly do not want to see. But we feel that there should be sufficient notices at the right time and in the right place. That is why we chose the words "reasonably practical".
I turn to Amendment No. 101. I thank the Government for coming back with that amendment. We spoke about it in Committee and the Minister promised to return with an amendment, which we are now very pleased to have. The words "reasonably practical" do not cause concern to those of us on the Front Bench. The direction is that the owners should be consulted wherever it is reasonably practical to do so and we are grateful for that. Therefore, at this stage, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 98 and 99 not moved.]
Earl Peel moved Amendment No. 100:
Clause 19, page 11, line 30, at end insert—
("( ) An access authority shall take such steps and carry out such work (including the erection and maintenance of fences, signs or notices) as appear to it requisite for protecting the public from any source of danger on access land or on adjoining land.").
§ The noble Earl said: Perhaps I may respond to the comments made by my noble friend. I entirely subscribe to his view. The last thing in the world we want to see is unnecessary signs and fencing cluttering up the countryside. I do not know whether the noble Lord was present when we had the discussions on liability, but it became abundantly clear that landowners will be far more responsible for dealing with mineshafts and quarries under the liability provisions—
§ Baroness Nicol
My Lords, I thank the noble Earl for giving way. Perhaps I may intervene on a point of order. Not only does he need the leave of the House to speak twice to his amendment; he needs to move it if he wants to make a speech.
§ Earl Peel
My Lords, I believe that I am correct in what I am doing. The point I should like to make is that my amendment would not necessarily result in what the noble Lord, Lord Marlesford, suggested. Perhaps I may draw his attention to the wording, which states:as appear to it requisite",which refers to the authority. It is very precise. If the authority decided that it was inappropriate to do so, they would not do so. However, if there was a danger to the public, which they thought it necessary to 1456 protect, this provision would give them the power to do so. It would place a duty on them to do so. I beg to move.
§ Lord Marlesford
My Lords, if local authorities are put under that sort of obligation, a person in a junior position would probably say, "It is more than my job's worth not to put up a sign by that rabbit hole". (I do not speak literally.) That is human nature. We want to avoid that position. We must keep the countryside as unspoilt as possible. I agree with the Minister when he says that there are risks; these are the risks of everyday life and country life, and let us all accept them.
§ Earl Peel
My Lords, that is absolutely fine. If we state that people should take responsibility for their own safety, as the Minister has said, they will simply sue the landowner because he has not followed the necessary safety requirements in order to prevent an accident from happening. I have heard the comments of the noble Lord. I am not happy about it. We shall come back to this issue at Third Reading. However, in the mean time I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord McIntosh of Haringey moved Amendment No. 101:
Clause 19, page 11, line 33, at end insert—
("(2A) Before erecting a notice on any land under subsection (1) the access authority shall, if reasonably practicable, consult the owner or occupier of the land.").
§ On Question, amendment agreed to.
§ [Amendments Nos. 102 and 103 not moved.]
Lord Whitty moved Amendment No. 104:
After Clause 19, insert the following new clause—