HL Deb 07 November 2000 vol 618 cc1399-416

(" .—(1) Any person having an interest in access land shall be entitled to be indemnified for any additional costs and expenses reasonably incurred as a result of the right conferred by section 2(1) or for any liability or loss resulting from the exercise, or purported exercise, of that right, which he cannot practicably recover from any other person.

(2) The Secretary of State shall make regulations as to the conditions for entitlement to such indemnity and as to the form and procedure by which such amounts may be recovered.").

The noble Lord said: My Lords, I move this amendment on behalf of the noble Viscount, Lord Bledisloe.

It is reasonable, as a matter of common justice, to provide that someone whose land becomes less valuable as a result of the granting of the right of access to that land should receive compensation. Also, apart from whether it is reasonable, it is highly likely to be a breach of Article 1 of the human rights convention if the Bill is passed without the possibility of redress in those circumstances. I shall not repeat my remarks in Committee on this issue, and I apologise for being absent for so much of the subsequent debate—although I shall return to the matter later in our proceedings.

The amendment does not relate directly to the issue of compensation. However, if passed, it would help to reduce the chances of the legislation falling foul of human rights legislation. It is a modest and limited proposal. It is based on the premise that, in the first instance, the person who has suffered loss and incurred costs has a duty to recover them from the person who has caused those costs or expenses to be incurred—for example, in a situation where it is necessary to repair damage to a wall caused by someone purporting to exercise the right of access. It is only if it is not practical to recover the costs and expenses incurred as a result of someone exercising or purporting to exercise the right of access that the provision bites. So it is very narrowly defined, as well as being a most reasonable provision.

However, the question arises as to whether it is likely or feasible that costs or expenses will be incurred as a result of the access provisions. There is little doubt that that is the case. It may be necessary to post notices advising of closures—closures that are permitted under the legislation as it has now reached this House. It may also be necessary to make risk assessments in relation to gates or stiles, which will involve expense. Indeed, it may be necessary to fence off mines. Above all, as a result of the provisions of the legislation, expense may be incurred as regards the necessity to increase insurance premiums. If I may say so, the attitude of the Government to the previous set of amendments makes it all the more likely that costs and expenses will be incurred, whether because of suits as a result of liability or the increased insurance necessary to avoid such suits.

Therefore, it is necessary to take account of the Bill as it stands when considering such matters. Although it has been improved as a result of government amendments, it is, none the less, perfectly plain that substantial costs will be incurred by many people and that such costs will not always be recoverable in practice, as opposed to in law, from anyone who is guilty in that respect. Indeed, in some cases there will not be anyone in particular who is responsible.

When considering this issue and my later amendment proposing a new compensation clause, it is necessary to take account of the fact that it is the Government's intention and desire—indeed, the whole purpose of the legislation—that there should be a substantial increase in the number of people who go on to the type of countryside covered by the Bill; otherwise, there would be no point in it. Therefore, something that does not involve cost, or which involves modest cost at present, will inevitably lead to substantially greater cost, or costs that previously did not exist, if what we are talking about turns out to be a flood right across the land rather than a trickle on a right of way.

We do not know how many people will exercise the right, but I am sure that the Government would not go through the trouble of introducing this legislation unless they assumed that the numbers would be quite substantial. There is a difference, which may be a difference in kind, not just a difference in quantity, when one is talking about large numbers of people following unfamiliar paths and going anywhere over land. The prospect of costs and expenses being incurred that are irrecoverable from any particular person is a real one. It would be unjust, unfair and probably contrary to the provisions of the convention on human rights for there to be no means of redress in such circumstances.

I see that, the noble Viscount, Lord Bledisloe, on whose behalf I have been proposing the amendment, is now back in his place. I am sure that a more full and cogent exposition of the merits of this proposed new clause will come from his lips in due course. I beg to move.

Viscount Bledisloe

My Lords, I shall begin my apologising for not being in my place when the amendment was called. My only mitigation, which may not excuse me, is the fact that the annunciator indicated that the House was still dealing with the Statement. I thank the noble Lord, Lord Brittan, for moving the amendment. As for the part of his speech that I heard, he certainly did so very much better than I could have clone. I am sure that he did equally as well in the part of his speech that I did not hear.

The amendment is based on the simple and, I venture to say, undeniable principle that a man must not be out of pocket because the Government have decided to give other people the right to walk across his land. I stress the words "out of pocket". This is not a clause about compensation; it is a clause solely about reimbursement of actual expenditure or loss. At present, if someone working with the Duke of Edinburgh's scheme, or whatever, seeks permission to take people across an occupier's land, the latter can say, "Yes, all right; but you must pay for any damage caused"— for example, a wall may be knocked down, sheep killed or something like that may happen. Even if that is not expressly stipulated, such an organisation would almost inevitably pay voluntarily for any damage caused because those concerned will want to return, and because they are decent people.

However, why should an occupier be worse off when the Government are giving permission on his behalf for people to enter the land and that results in damage by someone who cannot be identified, or who cannot pay? Why should the occupier have to expend money? Just before we adjourned to deal with the Statement, the noble Lord, Lord Whitty, expressly said, in answer to the previous debate, that in those circumstances a landowner may well have to repair a stile, a gate or something like that—indeed, a stile or a gate that he does not need to use, but one that he has to repair because people will now be coming on to his land. Why should the landowner be put to such expense?

In Committee, the noble Lord, Lord Whitty, said that, only a very few landowners are likely to be significantly affected".—[Official Report, 3/10/00; col. 1498.] I have two points to make in response. First, if that is right, it will not involve much money; and, therefore, I do not know what he is worrying about. Secondly, it is very little consolation to one landowner, who is "significantly affected" and seriously out of pocket, to know that there are many other occupiers who are not in the same boat. Indeed, one might go as far as to say that it will really add insult to injury to know that he is one of the few people who is suffering serious loss. The whole point of the concept of reimbursement of actual loss is to protect those people, who the noble Lord, Lord Whitty, may say will be relatively few, who are adversely affected.

I should also stress the point made by the noble Lord, Lord Brittan, about the convention on human rights. In the light of that point, I am absolutely confident that those on the Liberal Democrat Benches who are so enthusiastic about that legislation will no doubt feel very keen to support this amendment.

Baroness Miller of Chilthorne Domer

My Lords, given that cue, I think that I should speak next. We are keen to support the Human Rights Act. I am sure that we shall return to that legislation when we deal with the other amendment tabled in the name of the noble Lord, Lord Brittan. However, I am not sure that this amendment is very attractive to us, except in a superficial way. Perhaps I may explain to noble Lords the problems that we have with it.

The amendment would encourage landowners to seek individual solutions every time that there seemed to be a problem or a cost involved. When we discuss the issue of wardens later, I believe that we shall begin to realise why an individual solution to every situation may well be less desirable than having a warden appointed to deal with the problems that will arise as a result of open access to land. It may perhaps be clearer if I give noble Lords an example.

An individual may well have already suffered as a result of granting open access on his land prior to this legislation coming into force. That may well be in the form of path erosion, especially if the land in question is popular. Where you have an access authority that is both active and responsible, the solution may be to form a partnership. Here I must declare an interest as I am vice-president of the British Trust for Conservation Volunteers (BTCV). That partnership could be formed between, say, the voluntary sector, the private sector—for example, the hotels in the area—and the public sector. I think of the example of a national park authority. I should declare another interest as I am married to the chairman of Exmoor National Park Authority. I suggest that a successful partnership can be established to deal with the problem of path erosion.

Many other solutions would be more effective than simply paying an individual to solve a problem. That would be expensive for the public purse and may not prove to be the best solution. I certainly believe in looking after the interests of the public and the landowner in terms of ensuring that the public do not behave in an irresponsible manner. I believe that a warden scheme is likely to be the most effective solution to the problem we are discussing rather than a landowner employing someone to deal with it. I fear that Amendment No. 80 might lead us too far down the individual solution path. Therefore, we do not support it.

5.30 p.m.

Lord Brittan of Spennithorne

My Lords, before the noble Baroness sits down, does she agree that, in the absence of the solution that she proposes and in the absence of any kind of guarantee of proper wardening, individuals will incur costs and expenses and it is right that those should be met? Only if she were completely confident that all of those costs and expenses could be met some other way would there be any justification for rejecting the amendment.

Baroness Miller of Chilthorne Domer

My Lords, if our amendments on local access forums had not been accepted and therefore landowners in the areas concerned did not have a strong voice, I might agree with the noble Lord. However, those amendments have been accepted and landowners will be strongly represented on local access forums. Given that landlords will have a strong voice and will have an input as to how public money will be spent in their interest as well as in that of the user groups, that solution should be the right one.

Viscount Bledisloe

My Lords, before the noble Baroness sits down, I think that she has misunderstood the purpose of the amendment. It seeks to compensate for expenses, costs and loss reasonably incurred as a result of the right we are discussing. It does not mention preventing damage through wardening. I fully accept what the noble Baroness said in that regard but I am talking about the situation where harm has occurred—for example, where one's sheep have been killed and one cannot find the man responsible; or where one has had to repair a stile; or where one's wall has been knocked down. None of that can be stopped by a warden. I fully accept that, where the access authority can deal with a situation, the damage will not be considered to be reasonably incurred. The amendment does not concern wardening or prevention but compensation or indemnification against out of pocket expenses. The noble Baroness mentioned human rights but is she confident that the amendment on compensation will be accepted?

Baroness Mallalieu

My Lords, the provisions appear to be tightly drawn and do not relate to the kind of circumstances which the noble Baroness mentioned, for example, where there is already some erosion on paths and where schemes are already in place. The amendment deals specifically with instances where additional costs and expenses fall to the occupier as a direct result of the right given by this legislation, or the circumstances that the noble Viscount has just mentioned where some loss or liability results directly from the exercise of the right which is given under the Bill.

The purpose of the Bill, after all, is to give the public rights of access which they did not previously have. The burden of those rights of access must necessarily fall on landowners. Legislation which is intended to benefit us all should surely be paid for by us all. Few costs may result from the provisions. Other agencies or in some cases individuals may be responsible for the costs. But where a private landowner necessarily incurs out of pocket expenses in order to provide rights which all the rest of us can enjoy, there must surely, as a matter of fairness quite apart from any legal justification, be some provision in the legislation for those expenses to be met; otherwise, fairness goes out of the window.

Earl Peel

My Lords, I too support the amendment moved by the noble Lord, Lord Brittan. Again I declare an interest here. It might be worth remembering that when the Peak park authority drew up its access provisions—I believe that that occurred some time in the 1980s—it sought the services of the senior district valuer from Scotland whose job it was to assess what costs landowners were likely to incur (by "costs" I mean management costs as well as direct costs) as a direct result of the management agreements that were drawn up between that national park authority and owners and occupiers. Interestingly enough, they arrived at a figure of £4 an acre, notwithstanding any special costs that might have been incurred—to which the noble Viscount, Lord Bledisloe, referred—or indeed the additional costs that landowners would have to incur on fencing mine shafts and so on which we discussed on a previous amendment.

Therefore a precedent has already been set. I am surprised therefore that the Government are taking what I might regard as a rather cavalier attitude towards this whole question of compensation. Incidentally, in addition to the £4 an acre which was paid to the owner and occupier as a direct result of the intervention of the district valuer from Scotland, it was assessed that the local access authority was likely to incur a further cost of £6 an acre. That would, of course, include the costs of wardening.

On the question of access forums and wardens dealing with these matters, I am afraid that the noble Baroness is wrong. They will have a role and play a part but they cannot be involved in any agreements that are likely to be drawn up between owners and occupiers and the access authority. Those agreements take time to draw up and they are expensive, as many of us already know to our cost. Certainly any direct costs that are incurred have nothing to do with access forums and wardens. As I say, a precedent has been set. I should have thought therefore that my noble friend's amendment is all the more relevant.

Lord Northbourne

My Lords, will the Minister explain what happens when access leads to the need for a change in a farming system? I have a particular example in mind. On many hill farms it is still the practice to lamb on the hill. It is believed that lambs grow up hardy as a result of that exposure. On the hill there is much rough country, and lambs and ewes can get behind tussocks of grass for protection. For a variety of reasons many farmers lamb on the hill. The hill may be situated two, three or four miles away from a farm. If people come on the hill with dogs during lambing, or during the period when ewes are heavy in lamb—one must recognise that the shepherds will already be walking the hill in question three times a day—there is a real possibility that on some farms lambing on the hill will cease to be possible. Let us assume for the sake of argument that that is the case. If farming is to be sustained on those farms, it will then be necessary to put up a lambing shed. Who will pay for that lambing shed?

Baroness Carnegy of Lour

My Lords, on a somewhat smaller but important point, I do not think that my noble friend Lord Brittan mentioned insurance—although I missed the first half-minute of his speech and apologise to him.

Landowners and occupiers have an insurance policy against people being injured on their land in the general way. In England and Wales there is at present the law of trespass. That is, presumably, mainly an insurance policy against people being damaged by, let us say, a fallen tree on a footpath. My experience is that that is a quite low premium. However, that premium is bound to increase when people can roam across the land in many directions. That will be a cost. Surely that must be recouped in some way because it is a cost expressly imposed by Parliament on people who are running their business. That seems to me an additional reason why the amendment is important.

Lord Renton

My Lords, I mention two matters in support of 1 he amendment which limit its effect and which the Government should bear in mind with some comfort to themselves. First, subsection (1) refers to, costs and expenses reasonably incurred as a result of the right conferred by section 2(1)". I shall not go into the full details of Clause 2(1) because it refers to considerable parts of the Bill. It means that there are limitations.

The Government can take even more comfort from this second point. Subsection (2) of the amendment provides that the Secretary of State will be able to make regulations as to the conditions for entitlement to the indemnity. That gives the Government very great power for limiting the application. With those two thoughts in mind, I should have thought that the Government would welcome the amendment.

Lord Monro of Langholm

My Lords, if the Bill is to be a success, the key word is harmony. I refer to harmony between the countryside and those who wish to have access under the new legislation. In order to help those farmers and landowners who put their fences, gates and stiles in good shape, it seems a small concession for the Government to be somewhat more generous than at present.

We have had some concessions from the Government, but nothing like enough. It would be a big step forward for those who will have to face expensive costs—the landowners or tenants of the land—if the Government were prepared to meet those costs. If the Government agree to meet them, let us try to cut out some of the bureaucracy which attaches at present to almost any application for any grant for any quango in this country. All noble Lords who speak from practical experience of the Ministry of Agriculture, Fisheries and Food, the NCC, English Nature or SNH and so on, know that it is a major task to obtain what the farmer or landowner may consider a legitimate grant.

If the Government are keen to make the Bill a success—from the efforts they have put into it one presumes that they are—it is right that they should support the amendment put forward so well by my noble friend Lord Brittan and the noble Viscount, Lord Bledisloe, and demonstrate some support for the agricultural and land-owning industry which will undoubtedly be put to immense costs by the Bill. The Minister may say that the provision will affect relatively few landowners and farms. That is all the more reason that he should be more conciliatory.

5.45 p.m.

Baroness Thornton

We have spent many days debating how to minimise the impact of the Bill on landowners and land managers, including the cost to them. I am still unclear why Members opposite feel the need for extra compensation. Many of our debates have centred on how to minimise the effects of the Bill and how to provide support through warden schemes and extra financial help. I am not convinced of the need for the amendment.

Lord Marlesford

My Lords, I wish to raise three points. First, despite what the noble Baroness, Lady Thornton, has just said, the Liberal Party spokesman has not addressed the amendment. Before we vote on the issue, I hope that someone from the Liberal Benches will address the amendment; otherwise it would be rather unreasonable to leave Members of the Liberal Party without guidance. I give way.

Baroness Miller of Chilthorne Domer

My Lords, with the leave of the House, perhaps I may clarify what I said. The amendment refers to "any"—I emphasise that word— "additional costs and expenses". It does not refer to exceptional costs and expenses. That is why I gave a broad reply. It is a broad amendment.

Lord Marlesford

My Lords, I am delighted that the noble Baroness has made that point. It brings me to my second point.

The amendment relates to specific costs, which have to be demonstrable and, therefore, a matter of fact. I am not a lawyer; we are surrounded by brilliant lawyers. But I understand that matters of fact in these cases are for the courts to determine, as the Inland Revenue is always telling us.

Thirdly, if the Government resist the amendment, do they not put themselves in a different position from other third parties which impose costs on others? I hope that they will deal with that specific point. If they are doing so, perhaps I may suggest to them that under the provisions of the European convention again it will not be for the Government but for the courts to determine whether liability exists.

Baroness Byford

My Lords, I support the amendment. I was somewhat surprised by the comments of the noble Baroness, Lady Thornton—she is normally very clued up—who implied that, as we have spent a great deal of time on the issue, the amendment is unnecessary. I am sure that I misunderstand her. She is a realist. In reality there is a problem. We have approved government Amendment No. 77 which states that there will be some burdens. The noble Baroness cannot argue that there will be no expenses when the Government clearly expect some. I do not follow her reasoning.

I shall not repeat the many points raised. However, if the issue will not affect many people, I do not understand why the Government shy away from it. Perhaps there are more hidden issues on the agenda than we have touched on. I do not anticipate that the Government will say no to the amendment. We have not given the Minister a chance to say that he willingly accepts the amendment. I shall encourage him to say that, having heard the many arguments, the Government are willing to consider the amendment.

Lord Whitty

My Lords, I deeply regret that I cannot respond positively in the way requested by the noble Baroness. We have discussed previously general provisions on compensation. As the noble Baroness, Lady Miller, said, it is a somewhat open-ended call for compensation. Like the noble Lord, Lord Brittan, and others, I acknowledge that the amendment is more precisely drafted than any that we have dealt with before on the subject. It reflects the concern that any right of access will give rise to substantial costs.

Everything that we have done in the Bill and in every amendment that we have conceded in favour of the landlords minimises the cost on landowners. Substantial costs will not arise in this case. The aim of the Bill is to enable people to walk over countryside that has limited—possibly important, but still limited—use without interfering with the ability of owners or occupiers to use or develop the land as they did before. There is no requirement on landowners to become involved in expenditure to facilitate access to the land.

The impact of walkers on owners and occupiers will be minimal. The amendments to which we have already agreed will reduce that minimal impact still further. For example, the new restrictions on dogs and feeding livestock that we agreed the other day will limit the impact to which the noble Lord, Lord Northbourne, referred.

6 p.m.

Lord Northbourne

My Lords, am I right in believing that the amendments limit the impact of dogs only in fields and enclosures and not on the open hill? I was referring to lambing on the open hill, which is quite common.

Lord Whitty

My Lords, it depends on the definition of "enclosure". In many cases, hill farming will include an enclosure. The noble Lord may be right in part in relation to dogs, but the main right is for people to walk.

Lord Northbourne

My Lords, I was referring to Amendment No. 118.

Lord Whitty

Yes, my Lords, we are referring to the amendments that were debated the other day on dogs in the lambing season. There is only a limited likelihood of any additional cost being imposed on hill farmers as a result of a relatively small number of people walking on the land. Other circumstances, such as severe weather, are much more likely to have an adverse impact on open fell lambing. We do not see any reason to fund the building of lambing sheds or any other change in operations that the farmer might have to undertake.

If problems arose in a particular area and there was a serious impact on the landowner, the relevant authorities could make a direction to exclude or restrict access during the relevant period. I know that many noble Lords do not trust the access authorities or the countryside authorities to undertake activities in the landowners' interests, but that is a seriously misplaced and wrong judgment. Any impact that seriously affects the ability to carry out land management in the usual way will be taken seriously by the authorities in agreeing to a restriction.

The liability of owners and occupiers is minimal. It is a liability in relation to trespassers. That minimal liability has been further qualified by the many amendments that we have made during the passage of the Bill, which have been consistently in favour of landowners. The right of access will be tightly prescribed. We will finance the access authorities to fund measures to facilitate access. That cross will not fall on the landowners. The access authorities may well co-operate with landowners in establishing stiles or other means of access, but the cost for access purposes will fall on the access authorities. We also propose to enable the Countryside Agency to operate a grant scheme for works to help landowners manage access in the best possible way.

We are providing a number of ways to avoid any costs falling on landowners. The demand that compensation should be paid in such a relatively open-ended way because of substantial costs to landowners does not stand up.

Earl Peel

My Lords, will the Minister address my specific point about the assessment made by the district valuer from Scotland of the costs incurred by landowners because of the access agreements in the Peak park at £4 an acre?

Lord Whitty

My Lords, on existing access land there are arrangements between the access authority—usually the national park—and landowners, under which payments are made to landowners in respect of access. However, in those places landowners have no right to apply for restrictions, there is no reduction in their liability and there is no provision for reimbursement by the access authorities for expenditure to facilitate access in the way that I have described. All those aspects are reflected in statutory rights or limitations and statutory reimbursement in the Bill. That does not apply to voluntary access in the Peak park.

Earl Peel

My Lords, with respect, I have a copy of the Peak District National Park Authority agreement on access. There is a general indemnity against anybody incurring liabilities under the agreement.

Lord Whitty

My Lords, that is not a statutory indemnity. We are talking about the statutory balance between restricting liability, providing for reimbursement and restricting the impact of access to minimise the costs to occupiers and land managers. All of that operates in favour of the landowner. The amendment would provide for financial compensation that is already met by the other provisions of the Bill.

In some circumstances the landowner will voluntarily undertake certain costs. There may be benefits to him from co-operating with the access authority to provide a facility that benefits him at least as much as it benefits the users of the access right. The costs of making provision solely for access rights would fall on the access authority where it judged the work necessary, not on the landowner.

The impact may be more significant for a minority of landowners, such as those who own honeypot sites. Our approach is to deal with such situations by agreement and by management. That is why the attack on the noble Baroness, Lady Miller, was misplaced. She said clearly that arrangements ought to be established by consensus and agreement, not by an adversarial process of compensation. The local access forum will have a major role to play, as will the agreements between the access authority and landowners.

In some honeypot situations, the landowner will have opportunities to recoup some costs by diversifying and providing commercial facilities. The costs can be met in all sorts of ways. Compensation creates a psychology of confrontation and an inappropriately adversarial arrangement. Only a few hours ago we made provision for local access forums and for arrangements under which the access authority would cover the cost of facilitating access.

The argument that the Government should provide for compensation if they think that the costs are minimal should be addressed in that context. Providing for a general right of compensation, even in the relatively precise terms of the amendment, means presuming that the issues will be dealt with through a system of compensation and claims, whereas we want the facilitating, managing and operating of access to be addressed in local access forums by agreements and by co-operation between the access authorities and landowners and users.

It is in that context that we address the problems where costs are incurred. By and large, such costs would be met in other ways. If we start to pro vide for a system of compensation, not only will the access authorities be tempted to say, "OK, that is what we want. If you don't like it then go for compensation", it will also provide for unscrupulous landowners to go through the courts and claim compensation before they agree to any form of access. We want the presumption to be that there will be agreement. This amendment is based on the presumption that there will not be agreement.

Finally, perhaps I may address—

6 p.m.

Lord Roberts of Conwy

My Lords, perhaps the noble Lord will assist me on one point. Much concern has been expressed in many areas about the future of agreements such as those operative in the Peak District, as referred to by my noble friend Lord Peel. Will the passage of this Bill into law mean the end of those agreements?

Lord Whitty

No, my Lords. As with other voluntary access, the voluntary agreements are not affected directly by this Bill. Should those agreements fall at some point, the statutory back-up may well come into play; currently it does not. However, there is no presumption that such voluntary arrangements would fall with the passage of this Bill and I would not expect them to do so.

Finally, I address briefly the point raised in relation to human rights. We went over this matter at an earlier stage and I rather suspect that it will be addressed more fully when we come to the later amendment tabled by the noble Lord, Lord Brittan. I was asked to check our legal advice on this matter. I have now done so. The legal advice remains that this issue does not create a problem in relation to the Human Rights Act and that the proposals are fully consistent with that Act. As I said, we may well wish to return to the issue and I shall save further details until then.

Viscount Bledisloe

My Lords, before the noble Lord sits down, is he aware that he has dealt with only half of the amendment? He has spoken at great length about why the landowner will not need to incur costs and expenses. However, he has not dealt at all with loss caused to a landowner by someone who exercises the right. Someone may let his dog off the lead and it may then kill some sheep. We may not know who that person is or he may not have any money. The noble Lord has not dealt with such a scenario. No amount of saying that the access authority will carry out many good deeds will prevent such a situation happening or give the owner consolation for his dead sheep. The noble Lord has not dealt at all with that aspect.

Lord Whitty

My Lords, the matter of someone letting loose a dog will not be covered by this Act any more than it is at present by any other legislation. If we expect the statutes of the land to provide for compensation from the public purse for all unidentified vandals and all people who breach the restrictions of the law, that should apply to all property owners and all commercial operations right across the land.

Once again, the landowners in this debate are seeking special treatment for landowners in this particular situation. That is something that I have attempted to resist throughout our debates. I accept that a degree of balance must be established. However, I do not believe that the type of special treatment sought under this amendment is appropriate in these circumstances.

Baroness Warnock

My Lords, it must be wrong to say that if this amendment were passed it would mean that unidentified vandalism of any property would have to be compensated by the Government. After all, this Bill proposes a new risk to landowners which is not the same type of risk to which all householders are exposed. Because access will be granted, damage may indeed be incurred to the landowner's property and also to his preferred way of farming, as the noble Lord, Lord Northbourne, has already pointed out. Compensation is being proposed only within the context of this Bill. So far as I understand the amendment, it has no further general application whatever.

Lord Whitty

My Lords, that is precisely the point that I am making. Effectively, subsection (2) of the amendment suggests that the state will compensate such landowners for unidentified criminal damage— to livestock in the example given by the noble Viscount—whereas in no other situation does the state provide such an indemnity. I do not consider that to be appropriate in these circumstances. Given all the other safeguards that we have built into the Bill in the course of the deliberations in this House, I believe that it would open a door and create a precedent which is not to be found in any other area of property law.

The Countess of Mar

My Lords, can the noble Lord say in what other circumstances members of the general public can go on private land as a matter of right? What compensation is available for the landowners in such cases? I think particularly of someone who is careless with a cigarette, throws it away and burns a man's grazing. How will the owner of the grazing feed his stock if the area where people are allowed to walk is burnt?

Lord Whitty

My Lords, it is a criminal offence to light a fire. If one cannot catch the criminal, one cannot prosecute him. That applies just as much to all owners of property as it does to owners of access land. From time to time, all owners of property are subject to graffiti, damage and other activity by vandals and criminals. However, we do not turn to the state to compensate them.

Lord Brittan of Spennithorne

My Lords, in listening to the Minister's response to this debate, I could not help feeling that his sense of justice was overwhelmed by his admiration for his own generosity. I do not believe that that is a justified response to a debate or an answer to a serious point. In fact, the last points made by the Minister were the least persuasive of all.

It simply will not do to present this amendment as if it were seeking to give landlords a privileged position or a special benefit. It is wholly different from a situation in which in the ordinary course of events someone suffers loss or incurs expense and cannot recoup it because he cannot find the person responsible or the person cannot find money. The fundamental difference is that in this case the loss and expense have been incurred because of the action of the Government and Parliament in passing this legislation. That is a fundamental difference. It is no use the Minister shaking his head. In a reasonably extended response he has not given a single reason why it is not a wholly different situation.

The questions that the House must consider are whether costs and expenses are incurred; whether it is reasonable that those should be met; and whether this position is a reasonable way to meet them or whether there is an alternative. I want to address particularly the point made by the noble Baroness, Lady Miller, in the hope that, even at this late hour, I can persuade her to join us in the Division Lobbies where I believe we should go in support of this amendment.

First, the relevance of what my noble friend Lord Peel said about the situation in the Peak District was simply that there it was recognised that special rights of entry were likely to cause injury or damage and therefore an indemnity existed for that. The point is that the district valuer calculated what the costs were likely to be. That shows that, in circumstances where extended rights of access are given, it is likely that costs will be incurred. From all quarters of the House countless examples have been given of costs, expenses and losses that would be incurred, and the Minister has not been able to deny them for a single moment.

I turn to the matter of insurance. The Minister made a point about the wonderful provisions in the Bill and the extreme generosity of the Government in mitigating the costs. No one denies the costs, whether they be incurred through insurance or the possibility of loss referred to by the noble Viscount, Lord Bledisloe, in his recent intervention. Money will be expended and costs will be incurred. The question which arises is that, if costs and expenses are incurred as a result of legislation, should there not be a provision for those costs to be met? What is the answer to that? The answer is, first, it will not be as bad as all that because of the all the wonderful things we have done.

In that regard, I turn to the noble Baroness, Lady Miller, and say that even if you accept that the provisions with regard to access forums make it possible to reduce substantially the risk of damage and losses being incurred, and even if you add to that the further provisions with regard to wardening and all the steps which the Government have genuinely taken which are good to try to reduce the likelihood that there will be costs or the extent of those costs, nobody could possibly say that that is a total solution to the problem. Even if the forums worked wonderfully, the wardens were put into existence and the authorities acted in good faith with generosity, nobody could possibly say that that would prevent costs or expenses being incurred by the individual landowner. At most, it will reduce the amount which will be incurred.

To the extent that it reduces it, it will reduce the amount of compensation which will be payable under this provision. Therefore, it is not right to say, as the Minister said, that that will stir up litigation and make it confrontational, whereas what the Minister prefers is the more conciliatory approach which has the agreement of everybody concerned.

Frankly, it is disingenuous to pretend that that is an answer to the debate, because if those provisions with regard to access forums reduce the amount of costs and expenses incurred, nobody could possibly suggest that they will eliminate them. The lower they are, the lower will be the bill that the Government have to meet if this amendment is passed. Therefore, the Minister should welcome it.

It is quite unfair and meretricious to pretend that this is stirring up litigation or confrontation when everything could be settled peacefully and comfortably around the forum table. That is absolute nonsense and the Minister in his heart of hearts knows it. The truth of the matter is that he is saying that he has gone far enough and he does not have the stomach or the patience to go further. That is not a way to legislate or to do justice.

If the noble Baroness, Lady Miller, looks at the new clause, she will see that it is couched in extremely moderate terms. The point that she makes about exceptional expenditure is covered by the fact that costs and losses can be recovered only where the expenses have been reasonably incurred. That means that if the actions of the forum enable the problem to be solved in some way and the other wonderful measures enable the problem to be solved, then there is no claim. It is only after all that has failed and losses and expenses have been incurred that this provision bites.

It is extremely difficult to see that a concern for the human rights convention would enable one to come to the conclusion that if all other measures fail and losses are still incurred, there should not be this modest, carefully and narrowly-drawn provision for meeting those costs and expenses. Therefore I hope that your Lordships will join us in the Division Lobbies in support of adding an element of justice to what is already provided. I hope that the Minister will not feel that because he has met some concerns, he should resist others, provided that those concerns are legitimate and moderately couched.

6.13 p.m.

On Question, Whether the said amendment (No. 80) shall be agreed to?

Their Lordships divided: Contents, 123; Not-Contents, 159.

Division No. 2
CONTENTS
Allenby of Megiddo, V. Forsyth of Drumlean, L.
Anelay of St Johns, B. Fraser of Carmyllie, L.
Astor of Hever, L. Gardner of Parkes, B.
Attlee, E. Geddes, L.
Baker of Dorking, L. Glenarthur, L.
Blaker, L. Glentoran, L.
Blatch, B. Goschen, V.
Bledisloe, V.[Teller] Gray of Contin, L.
Boardman, L. Greenway, L.
Bridges, L. Hanham, B.
Brightman, L. Harris of High Cross, L.
Brittan of Spennithorne, L. [Teller] Hayhoe, L.
Henley, L.
Brookeborough, V. Higgins, L.
Burnham, L. Hogg, B.
Buxton of Alsa, L. Howe, E.
Byford, B. Howell of Guildford, L.
Caithness, E. Hunt of Wirral, L.
Campbell of Alloway, L. Jopling, L.
Carlisle of Bucklow, L. Kimball, L.
Carnarvon, E. Kingsland, L.
Carnegy of Lour, B. Knight of Collingtree, B.
Chadlington, L. Listowel, E.
Clark of Kempston, L. Luke, L.
Coe, L. Lyell, L.
Colville of Culross, V. Mackay of Ardbrecknish, L.
Colwyn, L. Mancroft, L.
Cope of Berkeley, L. Mar, C.
Craig of Radley, L. Marlesford, L.
Cranborne, V. Mayhew of Twysden, L.
Crickhowell, L. Molyneaux of Killead, L.
Dacre of Glanton, L. Monro of Langholm, L.
Darcy de Knayth, B. Monson, L.
Dean of Harptree, L. Moynihan, L.
Denham, L. Murton of Lindisfarne, L.
Dixon-Smith. L. Naseby, L.
Eccles of Moulton, B. Noakes, B.
Eden of Winton, L. Northbourne, L.
Elton, L. Northbrook, L.
Flather, B. Northesk, E.
Fookes, B. Norton of Louth, L.
O'Cathain, B. Shaw of Northstead, L.
Onslow, E. Simon of Glaisdale, L.
Oppenheim-Barnes, B. Skelmersdale, L.
Oxfuird, V. Stewartby, L.
Palmer, L. Stodart of Leaston, L.
Park of Monmouth, B. Strange, B.
Parkinson, L. Strathclyde, L.
Pearson of Rannoch, L. Swinfen, L.
Peel, E. Tebbit, L.
Peyton of Yeovil, L. Tugendhat, L.
Plummer of St. Marylebone, L. Vinson, L.
Rawlings, B. Vivian, L.
Reay, L. Waddington, L.
Renton, L. Wade of Chorlton, L.
Roberts of Conwy, L. Walker of Worcester, L.
Rotherwick, L. Walpole, L.
Ryder of Wensum, L. Warnock, B.
Seccombe, B. Weatherill, L.
Selborne, E. Wilcox, B.
Selsdon, L. Williamson of Horton, L.
Sharpies, B. Young, B.
NOT-CONTENTS
Acton, L. Geraint, L.
Addington, L. Gilbert, L.
Ahmed, L. Gladwin of Clee, L.
Alton of Liverpool, L. Goldsmith, L.
Amos, B. Goodhart, L.
Andrews, B. Gordon of Strathblane, L.
Ashley of Stoke, L. Goudie, B.
Bach, L. Gould of Potternewton, B.
Barker, B. Graham of Edmonton, L.
Barnett, L. Greaves, L.
Bassam of Brighton, L. Gregson, L.
Berkeley, L. Grenfell, L.
Bernstein of Craigweil, L. Hardy of Wath, L.
Billingham, B. Harris of Greenwich, L.
Blease, L. Harris of Haringey, L.
Borrie, L. Harris of Richmond, B.
Brennan, L Harrison, L.
Brett, L. Haskel, L.
Brooke of Alverthorpe, L. Hayman, B.
Brookman, L. Hollis of Heigham, B.
Brooks of Tremorfa, L. Howells of St. Davids, B.
Burlison, L. Howie of Troon, L.
Carter, L.[Teller] Hoyle, L.
Chandos, V. Hughes of Woodside, L.
Christopher, L. Hunt of Chesterton, L.
Clarke of Hampstead, L. Hunt of Kings Heath, L.
Clement-Jones, L. Irvine of Lairg, L. (Lord Chancellor)
Clinton-Davis, L.
Cocks of Hartcliffe, L. Islwyn, L.
Cohen of Pimlico, B. Janner of Braunstone, L.
Crawley, B. Jay of Paddington, B. (Lord Privy Seal)
David, B.
Davies of Coity, L. Jenkins of Putney, L.
Davies of Oldham, L. King of West Bromwich, L.
Dean of Thornton-le-Fylde, B. Lea of Crondall, L.
Desai, L. Lester of Herne Hill, L.
Dholakia, L. Linklater of Butterstone, B.
Dixon, L. Lipsey, L.
Donoughue, L. Lockwood, B.
Dormand of Easington, L. Lofthouse of Pontefract, L.
Dubs, L. McCarthy, L.
Elder, L. Macdonald of Tradeston, L.
Evans of Parkside, L. McIntosh of Haringey, L. [Teller]
Evans of Temple Guiting, L.
Ezra, L. McIntosh of Hudnall, B.
Falconer of Thoroton, L. MacKenzie of Culkein, L.
Falkland, V. Mackenzie of Framwellgate, L
Farrington of Ribbleton, B. McNally, L.
Faulkner of Worcester, L. Maddock, B.
Filkin, L. Mar and Kellie, E.
Fitt, L. Mason of Barnsley, L.
Gale, B. Methuen, L.
Miller of Chilthorne Domer, B. Sheppard of Liverpool, L.
Mitchell, L. Shutt of Greetland, L.
Molloy, L. Simon, V.
Morris of Castle Morris, L. Smith of Gilmorehill, B.
Newby, L. Smith of Leigh, L.
Nicol, B. Stone of Blackheath, L.
Northover, B. Strabolgi, L.
Orme, L. Taverne, L.
Parekh, L. Taylor of Blackburn, L.
Patel, L. Thomson of Monifieth, L.
Patel of Blackburn, L. Thornton, B.
Phillips of Sudbury, L. Tomlinson, L.
Plant of Highfield, L. Tope, L.
Prys-Davies, L. Tordoff, L.
Ramsay of Cartvale, B. Turnberg, L.
Razzall, L. Turner of Camden, B.
Rea, L. Walker of Doncaster, L.
Redesdale, L. Wallace of Saltaire, L.
Rendell of Babergh, B. Walmsley, B.
Rennard, L. Warner, L.
Richard, L. Warwick of Undercliffe, B.
Rodgers of Quarry Bank, L. Whitaker, B.
Rogers of Riverside, L. Whitty, L.
Roper, L. Wilkins, B.
Russell, E. Williams of Elvel, L.
Sandberg, L. Williams of Mostyn, L.
Scotland of Asthal, B. Winston, L.
Sharp of Guildford, B. Woolmer of Leeds, L.
Shepherd, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.24 p.m.

Clause 14 [Offence of displaying on access land notices deterring public use]:

[Amendment No. 81 not moved.]

Clause 16 [Dedication of land as access land]:

[Amendment No. 82 not moved.]

Baroness Fookes moved Amendment No. 83: After Clause 16, insert the following new clause—