Countryside and Rights of Way Bill

HL Deb 23 November 2000 vol 619 cc951-1066

3.45 p.m.

Lord Carter

My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Countryside and Rights of Way Bill, have consented to place their prerogatives and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Bill read a third time.

Clause 1 [Principal definitions for Part I]:

The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty) moved Amendment No. 1: Page 2, line 13, after ("includes") insert (", subject to the following definition,").

The noble Lord said: My Lords, I beg to move Amendment No. 1 and to speak also to Amendments Nos. 2, 35 and 37 standing in my name within the grouping. The first two amendments deal with the issue of improved and semi-improved land.

During debates in this House, noble Lords have repeatedly voiced concerns about the impact of the right of access on farmland. On Report, the noble Earl, Lord Peel, referred to improved and semi-improved grassland and acknowledged that, it will not be the express intention of the access authorities"— I believe that he meant the countryside bodies— to include such land within access provisions". He continued that, we are trying to define the areas in question in a way that will not lead to confusion".—[Official Report, 1/5/00; col. 958.] We have gone some way towards meeting that point. We have listened to those concerns and have brought forward Amendments Nos. 1 and 2, which we hope will directly address them.

The amendments will specifically provide, on the face of the Bill, that mountain, moor, heath and down do not include land which appears to the relevant countryside body to consist of improved or semi-improved grassland. The amendments will achieve two things: they will put beyond doubt the point that agricultural land other than unimproved grazing will not be treated as mountain, moor, heath and down; and they will enable such land to be excluded from maps of open country at the draft and provisional stages, so that both landowners and walkers can benefit from reasonable clarity about what is and what is not open countryside.

Perhaps I may also refer to Amendment No. 35, which deals with exclusion zones around buildings. On Report, noble Lords welcomed a government amendment to except from the right of access any land within 20 metres of a dwelling. I proposed that amendment on the basis that widespread concerns had been expressed as regards the privacy and security of individuals living on isolated access land.

However, at that stage, some noble Lords expressed the view that an exclusion area should go wider, to apply to all other buildings. I rejected the view that all buildings on access land should have an exclusion zone of 20 metres. We would certainly oppose introducing zones around dwellings which simply stand unused in the countryside. However, I did take to heart the case made as regards buildings in which livestock is housed. It is clear that there could be risks of disturbance and the protection of livestock is an important qualification as regards the access provisions. Amendment No. 35 will except the right of access from land within 20 metres of buildings used to house livestock.

We have also tabled Amendment No. 37 which deals with circumstances where the position of such buildings would effectively frustrate access. One of my other concerns was that if we did provide for a 20-metre exclusion zone, then in some cases access to certain areas of countryside would be frustrated. For example, there may be cases where the only feasible means of access to an area of open countryside is via a track which happens to run alongside a cattleshed or a dwelling. In such circumstances, we believe that walkers should be able to follow that track without losing their right of access. Of course, it would be open to the farmer to provide an alternative means of access nearby. However, where that is not the case, walkers should be able to use this extended right.

I hope that noble Lords will agree that the amendments create the right balance in this area. I beg to move.

Baroness Miller of Chilthorne Domer

My Lords, we very much welcome these government amendments. We felt that the Bill was rather light as regards how much help it offered to farmers in upland areas, given that it is generally acknowledged that they are experiencing a difficult time. In Committee, several noble Lords tabled amendments to deal with the matter of improved grassland. I am glad that we have finally been able to persuade the Government to take action on this issue.

Our main reservation on the question of night access turned on the matter of buildings used to house animals. We felt that that would make life extremely difficult for those farmers with buildings in upland areas. Again, creating such a cordon sanitaire is an extremely helpful move. We welcome all the amendments.

Lord Monro of Langholm

My Lords, I, too, welcome the amendments tabled by the noble Lord, Lord Whiny. I spoke at some length about the improved grassland that is frequently to be found between a farmstead and the open moorland. I am slightly disappointed that the amendment includes the word "appears"—in the reference: appears to the appropriate countryside body to consist of improved or semi-improved grassland". That seems to leave an element of doubt; whereas all farmers would have no doubt as to what was improved grassland—bearing in mind that it has probably been re-seeded and carefully fertilised over the years for hay and, of course, in the early bite before it is closed up for hay and for ground-nesting birds, etc. The word "appears" introduces a note of doubt about grassland.

I hope that the Minister will bear in mind—the wording of Amendment No. 37 suggests that he does see this—that most farmsteads are a closely knit collection of buildings, including the farmhouse, byres, hay sheds and so on. It will be very difficult to know whether walkers are within 20 metres of livestock buildings. Some form of clarification will be required. I am glad that by and large the Minister has listened to the remarks that were made on Report and has introduced Amendment No. 2, which is right.

Lord Hardy of Wath

My Lords, perhaps I may speak briefly to my Amendment No. 36 which is included in this group. It is similar to an amendment that I moved on Report but did not press. It is intended to ensure the small degree of flexibility that may be desirable if a rare or endangered species is to be properly protected.

On Report, my noble friend suggested that there was no problem, since those running a nature reserve could contact English Nature and secure the appropriate response, which would be helpful. I then wondered what would happen at weekends. My noble friend Lady Young will be able to tell me whether English Nature is staffed on Saturdays and Sundays, when nature reserves tend to be most frequently visited. If on a Friday evening someone involved in a reserve notices a rare plant just coming into bloom, or observes a ground-nesting bird starting to lay—bearing in mind that ground-nesting birds do not usually spend much time preparing a nest—it may be appropriate for someone in the reserve to have the right to prevent access in the immediate vicinity of that rare plant or rare bird. It would be sensible to provide that degree of flexibility. The Government will probably disagree—I am not sure that they like amendments—but this would be a tool in the armoury of organisations such as the county trusts which operate reserves, and which depend to a large extent on the efforts of volunteers. It would be sensible to provide the right to ensure that a particular species is protected for what may be a short period time when the matter is relevant. I support the amendment.

Earl Peel

My Lords, I thank the Minister for introducing Amendment No. 2, although I share the reservations of my noble friend Lord Monro about the word "appears". It may be an obvious point, but improved and semi-improved grassland will become excepted land; I assume that we can have an assurance that that land will not be mapped by the mapping authority—otherwise, I suggest it would lead to total confusion. I should like to say how much I welcome Amendment No. 35 dealing with the main issues that we raised last time.

Lord Jopling

My Lords, in adding my voice to the general welcome for the amendment, perhaps I may ask a question about Amendment No. 35, which is not entirely clear. In the Yorkshire Dales, and certainly in the Lake District, there are scattered buildings where small barns are used to store hay in the early part of the winter. When they have been emptied, because the hay has been fed to animals, those buildings are made available, particularly in very hard weather in the early months of the year, as shelter for those animals.

I assume from the wording of Amendment No. 35 that if the building is used for part of the year to house livestock, it would fall within the 20-metre cordon sanitaire for the whole of the year. It is important that it does, and that it is understood that, where a building is used for housing livestock for part of the year and for storing hay for the early months of the year, it will be exempt from the provisions of the Bill; otherwise, people would not know whether there were animals in the building at the time or whether it contained only hay. The only way they could find out would be to go up to it and look through the door. I hope I can assume that such buildings will be exempt for the whole of the year.

Lord Marlesford

My Lords, perhaps I may speak briefly in support of Amendment No. 36 and draw an analogy. Some years ago it became apparent that in cases of real urgency the Secretary of State should be able to make immediate listed building orders. There was a period when developers used to destroy buildings overnight, before appropriate action could be taken to list them, in order to prevent that happening. This provision strikes me as similar. I believe that the noble Lord is trying to make sure that the wheels do not grind too slowly in dealing with these matters.

Baroness Byford

My Lords, I, too, should like to thank the Minister for introducing these amendments, which we put forward at an early stage in Committee and which were debated during the course of the Bill. Perhaps the Minister will enlarge slightly on his Amendment No. 2—which we are happy to accept. We are slightly concerned about the word "appears" in the reference: land which appears to the appropriate countryside body". I should have thought that grassland either is, or is not, improved or semi-improved grassland. I do not know why that framework has been included. Secondly, will this matter be decided centrally, or will the interpretation vary in different parts of the country?

Lord Whitty

My Lords, on the noble Baroness's final point and on the queries regarding the inclusion of the word "appears", clearly the approach will be national, but a degree of judgment may well be required in marginal cases. That is why, consistent with other pieces of legislation, we have used the term "appear". We are talking about "improved or semi-improved" grassland, but there will be some semi-natural grassland which is essentially unimproved. It is grassland which, theoretically, might be able to produce a crop of hay but would not be included in this definition. There are marginal areas on which the countryside authorities will have to make a judgment. That is why the word "appears" appears.

As regards the question asked by the noble Earl, Lord Peel, and the noble Lord, Lord Monro, land which is improved or semi-improved will be excluded from the scope of the definition of mountain, moor, heath and down; so we should not generally expect such land to be mapped. That is why I said that this provision would benefit the mapping process, as well as ultimately being of benefit in terms of clarity to walkers and landowners.

On the question of buildings, the noble Lord, Lord Jopling, has misinterpreted the intention of the provision. The intention is to include buildings that are used to house livestock in the same way as other exceptions are written into the Bill—enclosures, pens, etc—when they are in use. We are not, therefore, excepting all buildings which might potentially at some point be used for livestock.

I may have slightly misled the House during my remarks on Amendment No. 37. I said then that the exception would be where access was near dwellings. But, in fact, dwellings remain protected. It is when access would otherwise be prevented by the 20 metre penumbra in relation to livestock that that exception is provided.

Perhaps I may turn now to the amendment tabled in the name of my noble friend Lord Hardy, Amendment No. 36, which was also spoken to by the noble Lord, Lord Marlesford. It would be very difficult to refer temporary exemptions to any authority. There are many areas that have urgent, temporary, "over-the-weekend" kind of exemptions. Moreover, plenty of areas already have nature conservancy areas on access land, and on non-access land, where sensible precautions can be taken without changing the legal position.

Where there is a problem, we believe that the owners of such sites can, if necessary, seek a direction under Clause 26 from the relevant authority for the conservation of wildlife in that particular area. In considering whether to give a direction, the relevant authority must have regard to advice provided by the relevant advisory body. Therefore, it is not a question of whether or not English Nature will be the advisory body; it will be a question of whether the relevant access authority is accessible at that time. We cannot cover all such contingencies. There is a whole experience of managing nature sites on what will now become access land, and elsewhere. I do not believe that we need the amendment of my noble friend Lord Hardy. I trust that he is reassured that Clause 26 will adequately cover the situation in almost all circumstances. I hope, therefore, that he will not press his amendment.

On Question, amendment agreed to.

Lord Whitty moved Amendment No. 2: Page 2, line 14, at end insert— (""mountain, moor, heath or down" does not include land which appears to the appropriate countryside body to consist of improved or semi-improved grassland;").

On Question, amendment agreed to.

4 p.m.

Clause 2 [Rights of public in relation to access land]:

Earl Peel moved Amendment No. 3: Page 3, line 15, at end insert— ("() Where on any day a person fails to comply with Schedule 2 or any restriction imposed under Chapter II, and, having been advised by the owner or by a person acting on his authority on two or more different occasions on the same day, on land in the same ownership, of the effect of that failure to comply, he again fails on the same day, on land in the same ownership, to comply with Schedule 2 or any restriction imposed under Chapter II, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 1 on the standard scale.").

The noble Earl said: My Lords, in moving this amendment I return to a subject that has been a sticking point throughout our deliberations on the Bill. It is the question of introducing a criminal sanction against those who persistently ignore regulations and restrictions under Schedule 2 and Chapter II of the Bill. Many of us feel that the Bill as it stands is inadequate in this respect, as an owner or an occupier would have recourse to the civil courts only against someone who, out of sheer bloody-mindedness, failed to comply with the request available under the Bill to leave that land for 72 hours because he had contravened Schedule 2 or Chapter II.

I appreciate that the Government have always resisted such a suggestion for fear of criminalising trespass. However, I suggest that the access provided in the Bill presents an entirely different situation. As I understand it, to commit trespass a person has to enter land over which he has no right to pass. But this Bill creates a new right of access over 4 million acres of land and, therefore, the general public have a right of access on that land under the legislation. It is only by repeatedly ignoring or resisting the restrictions and regulations under Schedule 2 and Chapter II that an offence is committed. It is not, therefore, the act of trespass as such that is an offence. As I say, this is a very different situation.

We need to remember also that the Bill contains criminal sanctions against owners and occupiers who impede access. I have no problems with that, but I think it essential—and only equitable therefore—that such a sanction should be available to the owner/ occupier against those who persistently abuse these new rights and responsibilities. My amendment is very tightly drawn and would only establish a criminal sanction when someone failed to comply on three occasions, on the same day, and on land in the same ownership. Further, the sanction would be set at the minimum level with a fine not exceeding £200.

I suggest that this is not an unreasonable measure to be available to those who wish to protect the management of their land against the very few—I acknowledge that it will only be a small number of people—who may blatantly abuse the new rights and responsibilities afforded to them under this legislation. I beg to move.

Baroness Carnegy of Lour

My Lords, I support this important amendment. None of us wants confrontation on the ground between people who are roaming and those who own or occupy the land. Our great fear about the Bill is that that will happen; it would be tragic. It seems to me that someone, not necessarily the occupier, who has been given instructions to advise a person that he should leave the land—for example, a gamekeeper, or some other employee of the owner or occupier—might well lose his temper when a person has persistently trespassed on the land after being warned about the sanctions and told that he should not do so. It would be extremely maddening, and could well cause trouble. The amendment suggests a very reasonable way to solve the problem. I hope that the Minister will consider it.

Lord Monson

My Lords, I, too, support this modest but vital amendment, as well as the other two amendments in the group to which I have not added my name. The maximum penalty proposed is as low as it reasonably could be without being virtually ineffective. As the noble Earl, Lord Peel, said, the amendment would not criminalise trespass as such. We do not want that to happen as far as concerns accidental trespass, and the Government certainly do not want it.

However, it is worth reminding ourselves that Sections 68 to 71 inclusive of the Criminal Justice and Public Order Act 1994, to which, I believe, the Government have no objection, do criminalise certain types of trespass and impose maximum fines at either level 3 or level 4, depending on the offence. Those fines are very much higher than the maximum fine proposed in this amendment. There really must be some small sanction to prevent abuse.

Lord Monro of Langholm

My Lords, way back on Second Reading I said that if we are to make this Bill effective, the key word is "harmony". I also said that there would have to be some give and take on all sides if we were to produce legislation that would be workable and acceptable to the general public. We have heard Ministers weighing up issues and balancing different considerations throughout the proceedings on the Bill. We have in fact made some progress, except on two or three matters, one of which is now before the House.

We must try to find some way of penalising those few people—there are relatively few of them, but they can be singularly difficult—who want to overstep the mark, ignore the law and create a great disturbance in the countryside when it is unnecessary. As we have said so many times, they are just the sort of people who will cause the damage that we are all trying to avoid—for example, by disturbing nesting birds, raptors and other birds in their peaceful existence on open moorland. In fact, we have no sanction at all; at present we merely have the 72-hour non-event. We should have a much stiffer sanction.

The question of balance is dramatically brought home to us today in those newspapers which mention the penalties that will be imposed under the hunting Bill to be introduced by the Government in the next Session. Draconian measures will be introduced: fines up to £5,000; police rights to stop and search and the confiscation of property. We have talked on previous occasions of confiscating vehicles and motor bikes. That, apparently, can be done under the terms of the hunting Bill, but not the one we are discussing. Everything can be thrown at the person hunting with hounds on his own land except imprisonment. The Government do not want to create martyrs. However, if someone persistently refuses to pay a fine, he could be charged with contempt of court.

One cannot possibly equate the measures proposed in a hunting Bill to be introduced next Session with the measures in the Bill we are discussing today. We must find a reasonable way to deal with those persistent offenders who will cause a great deal of trouble in the countryside. We all know the organisations they represent, which are not friendly to the countryside. A sanction must be available. Therefore, I believe that we should support the amendment of the noble Earl, Lord Peel.

The Lord Bishop of Hereford

My Lords, I also speak in favour of the amendment. This is a remarkable Bill. When it was first published it was given a cautious welcome both by the country landowners and by the ramblers. That is a sign of how the whole spirit of the Bill works towards harmony and convergence.

I express our gratitude to the Government for having understood so many of the points that have been made from different sides of the House. I believe that what the noble and learned lord, Lord Bingham, called a very modest sanction is probably necessary here in order to avoid confrontation. If this measure were to be incorporated in the Bill, I believe that confrontation would be less likely to occur because people would know that a sanction of this nature existed. I believe that it would hardly ever have to be invoked. It would be a valuable safeguard in the background for that small number of people who might on rare occasions be extraordinarily obstinate and obstructive and damage the interests of landowners and farmers. As I say, I support the amendment.

Lord Renton

My Lords, my noble friend Lord Peel mentioned quite rightly in moving this amendment that of course it was a modification of the law of trespass which does not give rise in itself to crime. But just in case the Government are thinking of relying upon standing by the civil nature of trespass, I think that they should bear in mind the dangers that could arise in the circumstances envisaged by this amendment.

Several of my noble friends have said that it would apply perhaps only to a few people. But it could apply to quite a large party of people who had got together hoping to exercise a right to roam but had not been given access. The damage that could be done is something that the Government should bear in mind. Several of my noble friends have mentioned damage to birds in the nesting season, but of course it would go much further than that. There is the potential damage to livestock. There is damage to sheep during the early season. Then in dry weather of course there is the potential damage to woods. This is a situation which must be covered. After all, the offence will not arise until, as the amendment says, on two or more different occasions on the same day", warning has been given. Surely when that amount of warning has been given and damage is done, or is likely to be done, it should be an offence to go on refusing to accept the warning.

4.15 p.m.

Lord Mancroft

My Lords, I also wish to support my noble friend Lord Peel. When Mr Michael Meacher has talked about the Bill over the past few weeks he has repeatedly said that he thinks we should search for balance. The right reverend Prelate has just mentioned balance. Throughout the Committee and Report stages noble Lords have repeatedly said that this is the one remaining area—perhaps there is one other—where there is not a balance at the moment. There are sanctions in one direction but not in another.

At the same time I have always understood the Government's point that they do not wish to make trespass a criminal offence because that would imply changing a principle we have held for many years. We must find a middle way. I rather think that my noble friend's amendment has found that middle way. It might be helpful to remember the manifesto commitment that the Labour Party gave before the 1997 election which states clearly: We will not … permit any abuse of a right to greater access". That implies that the Government rather than landowners should bear the burden of enforcement.

As the Bill stands at present, the burden of tackling any abuse—like the right reverend Prelate, I do not think that a huge number of people will abuse the measure—rests solely on landowners, who will have to pursue persistent offenders through the civil courts. As we all know, that is a difficult and cumbersome process. It starts with the tricky matter of finding out the name and address of the offender. If one thinks of what may arise on moorland or in open country when such an offence is being committed, it is a difficult situation to tackle. I accept the Government's point about trespass, but they should honour the commitment they gave in the election manifesto not to permit any abuse of access. They should provide more effective measures to tackle persistent abuse.

The wording of my noble friend's amendment is directed at persistent offenders. It mentions two warnings, the same piece of land, the same day. This persistent abuse will not occur often, but if it should occur, the landowner should have more strength to tackle it than he currently has. The only real objection that the Government had at the earlier stages of the Bill related to making trespass a criminal offence. There is no doubt that the amendment does not do that. The offence will break the regulations. Anyone who is on the land through the measures in the Bill cannot possibly be a trespasser. I hope that the Government will assist us on this last occasion to deal with this difficult issue and accept the amendment.

Baroness Young of Old Scone

My Lords, I speak to Amendment No. 17 which stands in my name. It might appear to have some similarities to Amendment No. 3 of the noble Earl, Lord Peel, but I believe that it is clearly different. The amendment is tightly drawn. It would introduce sanctions only if conservation damage of a serious nature were possible, where that possibility had been accepted by the nature conservation statutory bodies and the countryside body and where there had been full consultation on the matter.

Therefore, we are talking about a situation where extremely serious damage may occur. The amendment would also introduce a penalty only if the offence was clearly persistent and wilful and would demonstrably cause damage. The amendment seeks to prevent damage occurring rather than taking action after it has occurred because in some cases the damage may be irretrievable. It is different from a blanket provision which takes into account not only fairly minor infringements under Schedule 2 but also the whole range of possible infringements under Chapter II, many of which may be minor. The amendment focuses tightly on extremely serious nature conservation issues where prevention has to be better than cure because cure may not be possible.

Baroness Mallalieu

My Lords, I support both the amendment in the name of the noble Earl, Lord Peel, and that which has just been spoken to by my noble friend Lady Young. There is an imbalance in the Bill and there are some weaknesses. These two amendments seem to me to go to them.

I have been present during the majority of debates in this House and, due in no small part to the tact with which the Minister has conducted his part of the proceedings, they have been remarkably free from the polarisation that such a Bill might have been expected to provoke. The objective of all those who have taken an active part appears to me to have been to ensure that responsible access can be increased with the cooperation and support of the landowners and the managers once the Bill is on the statute book.

We are now at Third Reading and there is an imbalance to which the noble Lord, Lord Mancroft, referred. The Bill, quite rightly, includes provisions—landowners and occupiers could perhaps best be described as the access providers for this purpose—to penalise those who seek to frustrate access. The penalties are there. But at present the Bill does not penalise the access user who seeks to frustrate the lawful restrictions on that access.

The amendment of the noble Earl, Lord Peel, does not relate to the responsible walker or rambler. It relates only to the rogue, the person who deliberately and repeatedly breaks the rules. There is an understandable desire on the part of the Government not to wish to criminalise trespass. But such people are not trespassers. They are lawfully on the land but refuse to obey the lawful restrictions. It is perhaps unfortunate that there has not been more give and take on this issue in earlier stages of the Bill. However, I believe that the amendment properly strengthens the Bill and, to those who will have to make it work, presents the measure as even handed.

I support the noble Baroness's amendment for a different reason: it is different. It points out a weakness in the Bill. Those who would be subject to this penalisation are excluded for good reason but break the rules and trespass repeatedly in a way which is likely to cause damage. That damage may be difficult if not impossible to prove—or possibly only in the very long term. For example, where breeding birds are disturbed or flora damaged it may be months or years before the effect of that trespass is apparent. For that reason, injunction does not provide a suitable remedy because it will not be possible to produce proof to the relevant standard that damage has been done. Only when the last of that species has gone will it be fully appreciated.

I am usually the last person who wants to create yet more criminal offences. There are already too many. But parts of the Bill are likely to be rendered less effective without the sanctions proposed in the amendments. I support them.

Lord Marlesford

My Lords, I support both amendments. Of course there is a difference between them. But, more importantly, there is a similarity. The Bill removes property rights which previously existed. Both amendments seek to ensure that there is not abuse of that transfer of property rights. That similarity is, I suggest, more important than the difference. The noble Baroness says that nature conservation is different; of course it is. But it does not mean that it is more important. It is very important, but so is the point made by my noble friend Lord Peel. I believe that the Government should accept the amendments. I support them both.

Baroness Miller of Chilthorne Domer

My Lords, in an ideal world one would not need the noble Earl's amendment. However, in the rare event of confrontation we think that the amendment could inflame the situation.

Noble Lords will remember that in Committee we endeavoured to remove some of the more trivial and minor provisions in Schedule 2. Members of the Committee did not agree. But the user whose child picks a dandelion or creates a small pool in a stream would be subject to the penalty proposed in the noble Earl's amendment. In the best of all worlds, landowners would use any powers they have in the best possible way. However, the proposed amendment might inflame a situation where someone infringes the provisions in a minor way. It might be unhelpful. We believe that the amendment is too widely drawn.

I understand why the noble Baroness, Lady Young, has brought forward the amendment. We are surprised that the Government have not given more protection as regards the conservation aspect. Indeed, when we moved Amendment No. 98 in Committee, the noble Lord, Lord McIntosh, gave a reasoned explanation as to why it could not be accepted. I shall be interested to hear his reasons if he cannot accept the noble Baroness's amendment.

Baroness Byford

My Lords, I support Amendment No. 3 to which I have added my name. The response from almost all sides of the House underlines the belief that there should be some form of sanction for those deliberately persistent offenders for whom there is at present no such sanction in the Bill. I urge noble Lords to accept Amendment No. 3. It is very important.

I do not regard the amendment of the noble Baroness, Lady Young, as any less important. I hope that the Government will consider it sympathetically. Perhaps I may say this to the noble Baroness, Lady Miller. We should all love to live in an ideal world. Sadly, we do not. The thrust of our debates in recent weeks has been to balance the freedom to enjoy access over land with the restrictions, codes of practice, understandings and responsibilities that people have in the countryside. I am disappointed by the response from the Liberal Democrat Benches to my noble friend's amendment.

I am happy that my Amendment No. 34 is grouped with these amendments. I have raised this issue throughout the passage of the Bill. Many people believe—I was asked again on radio about it—that access is available now. Farmers in different areas refer constantly to people saying, "We have a right to be here". We know that they do not. I fear that the Minister will tell me that there is no need for my amendment. He indicated previously that he understands the wish underlying my amendment but I should like again to bring the matter forward.

As regards interpretation in a court of law, the noble Lord may well be right. But the Bill is most unusual in that it applies directly to the whole population. We are not talking about two or three people but millions. The Government cannot control the interpretation that hundreds will give to the Bill. It is not possible to identify those who will correctly take advantage of the rights granted to them. It is not possible to target everyone with all the information needed to enjoy those rights to the full.

Much our debate has centred on the provision of information: how open country will be defined; what will be shown on maps; what closures will be allowed and how they will be handled; how walkers will know what tracts of land are available to them on any given day and at any given time. The wording of the Bill has a part to play in helping walkers to benefit from those new rights.

The House has done a good job in building on the Bill that came to us. I urge your Lordships to make sure that the result of our deliberations is a Bill that is clearer and crisper than when it arrived. However, I am still concerned that access to access land does not start until two months after Royal Assent, as I have said before, and will not be completed for between two and five years after that. The Bill should tell the public clearly and unambiguously that they are not entitled to avail themselves of open access until the Secretary of State says that they can. Until that time, sanctions must remain in place to enforce the existing law. I support all three amendments.

4.30 p.m.

Lord McIntosh of Haringey

My Lords, I start with Amendment No. 34, which is perhaps the least contentious of the three and the easiest to deal with. A large number of people think that they will have a right of access as soon as the Bill is passed. It will be the responsibility of the Government, the Countryside Agency, the access authority, the ramblers and everybody else to be realistic about what will happen. Disappointingly for many of us—perhaps less disappointingly for others—the process will take a long time. Even the fast-track procedures for mountains and registered common land will take a long time. The remaining procedures involving the complete mapping process will take even longer. The right will not be granted straightaway. To that extent the noble Baroness, Lady Byford, is right and it is important that wrong ideas should not circulate about that.

However, her amendment is not necessary. I assure her—as it will be our responsibility to assure the public—that the Bill does not change the existing law on trespass. Existing sanctions will continue to apply until the new right of access comes into effect and thereafter. We are not changing trespass law.

On Amendment No. 3, we have made it clear in previous debates that we do not believe that a mere breach of a restriction that results in no harm or damage should be the subject of a criminal penalty. I agree that the amendment is more moderate than some that were tabled at earlier stages, but we still have serious concerns about the principle behind it. The amendment follows the "three strikes and you're out" principle, although I accept that it is limited to three strikes on one day. However, the Bill is stricter. We have provided for "one strike and you're out". Someone who is in breach of a restriction immediately loses their right of access for the next 72 hours. For that time they will be in the same position as trespassers are currently. That is why I have said that the law of trespass continues. They will have no right to be on the land. If they are found on it during that time, they can be removed in the same way as at present. A landowner does not have to wait until a walker has breached the restrictions three times and does not have to give prior warning before requiring the walker to leave.

The noble Lord, Lord Renton, and others gave examples. Many of the restrictions in Schedule 2 are already criminal offences in certain circumstances. Breaches of the others could be very minor, such as bathing in a pool or stream or allowing a dog to roam on an extended lead. Those are no more than simple trespass in the absence of any damage being done. However, the amendment would apply to them regardless of whether damage was done. Despite what the noble Lord, Lord Monson, the noble Lord, Lord Mancroft, or anybody else says, the amendment would criminalise trespass.

Of course we accept that any walker who is in breach of any of the restrictions should lose their right of access. That is part of the structure of the Bill. We have extended the provisions by making the walker's mere presence unlawful for 72 hours after the breach of any restriction. That 72-hour provision was a concession by the Government. The noble Baroness, Lady Byford, said in Committee that walkers who were aware that they may lose the right of access for 72 hours were likely to think twice before they contravened a restriction. We agreed and tabled an amendment to that effect on Report. The amendment was welcomed.

The noble Earl, Lord Peel, the noble Lord, Lord Mancroft, and the noble Baroness, Lady Mallalieu, talked about balance and quoted Michael Meacher. The noble Earl, Lord Peel, said that there were criminal sanctions against landowners who obstructed access and therefore there was no balance. There is no general criminal sanction. The only criminal offence is when a landowner fails to comply with a court order to remove an obstruction, following the service of at least two access notices. We have gone a long way to preserve balance.

Amendment No. 3 would make a breach of any restriction a criminal offence. It is not limited to repeats of the same restriction. Someone who was warned about two different breaches, however trivial—stepping off a path or bathing in a stream—would be liable to a fine. Someone could find themselves in breach of a criminal law simply for playing a game of football without doing any harm to anyone or to the land. A criminal penalty would be attached to any restriction, including discretionary restrictions imposed by landowners. A landowner could even say that only members of the Country Landowners' Association—or members of the Labour Party—could come on their land. Anybody else on the land would be in breach of a restriction and the amendment would kick in.

We have explained that landowners have existing powers of injunction. It may be easier to obtain an injunction than to pursue a criminal prosecution when they are not able to persuade the police to do so. With the greatest respect to my noble friend Lady Mallalieu, I do not agree with her. An injunction can be sought against a simple trespass, particularly if it is repeated and potentially damaging. It is not necessary to prove damage to justify an injunction. The case could be decided on the balance of probabilities.

Lord Renton

My Lords, the Minister's reliance on obtaining an injunction is not realistic. An injunction could not be obtained until several weeks after the event.

Lord McIntosh of Haringey

My Lords, how quickly could a criminal case be brought to court? A criminal prosecution would have to wait its turn. Priority would be given to more serious custodial cases. It might take months. It is not possible to be authoritative on the cost of injunctions compared with a private prosecution, because they will vary between cases, but they are likely to be higher for a prosecution.

The noble Lord, Lord Monson, cited the Criminal Justice and Public Order Act 1994. That Act said that trespass was a criminal offence only when the trespasser did something to intimidate, obstruct or disrupt a lawful activity on the land. That is not the restriction in Amendment No. 3. The provisions of the 1994 Act would still be a criminal offence on access land. I am sorry, but there is no way in which we can accept the amendment.

Amendment No. 17 is based on understandable and well informed concerns about the impact of breaches of restrictions to protect nature conservation interests on a site. It would apply a fine of up to £500 to a breach of a restriction or exclusion imposed on conservation grounds under Clause 26. It would require that the breach was intentional, had occurred at least three times in the past month and was likely to result in damage.

However, I am not convinced that it is appropriate or necessary to have a blanket criminal offence, even for a breach of a nature conservation restriction, where no harm or damage is caused. I believe that that is the key point. Criminalising trespass on land where access is restricted for conservation reasons would mean that we would be dealing differently with important conservation areas according to whether or not they were access land. That is not rational.

Perhaps I may give comfort to my noble friend Lady Young. I want to convince her that the Bill is already adequate to achieve what she wants. It will significantly increase the protection to wildlife and conservation sites. Part III improves enforcement of wildlife legislation, increases fines to £5,000 and introduces prison sentences for serious offences. It also creates new offences of intentionally or recklessly destroying or damaging SSSIs or disturbing rare animals on such sites, punishable with fines of up to £20,000 in the magistrates' court or unlimited fines in the Crown Court. We believe that that is the right way to tackle real problems.

Where identifiable harm or damage occurs, it will be subject to a criminal penalty. If a certain activity causes a particular problem, such as repeated breaches of conservation restrictions, Clause 17 enables the local authority to make it the subject of a by-law. That is the second leg of the comfort which I offer to my noble friend. English Nature already has by-law-making powers in relation to national nature reserves and European conservation areas, and we have tabled an amendment to Part III which will extend that power to cover all SSSIs. Surely that targeted approach is the right way to deal with any problems which may arise.

It is likely that simple restrictions on access will usually be sufficient to protect sensitive sites; for example, by limiting access to paths or applying tougher restrictions on dogs. The vast majority of walkers—I believe that everyone agrees with this—are likely to observe such restrictions without recourse to the criminal law. As I have already explained, where wilful and repeated trespass occurs, the court will be able to issue injunctions. Where harm or damage occurs, the general criminal law will apply.

I believe that where a breach of nature conservation, closures or restrictions causes significant harm or damage, that is best dealt with through the targeted measures which this Bill strengthens. I am not persuaded that Amendment No. 17 is the right way to achieve what we all want to achieve—that is, the effective protection of nature conservation interests.

Earl Peel

My Lords, I thank all noble Lords who have supported my Amendment No. 3. I should perhaps apologise to the House. We have reached a new stage of the Bill and I should have taken the opportunity to declare an interest in that I own land which will be subject to the access provisions under this Bill.

I believe that the right reverend Prelate the Bishop of Hereford summed up the matter: we need a balance to avoid confrontation. That is the issue which we are trying to come to terms with through this amendment. As the noble Baroness, Lady Mallalieu, rightly said, these sanctions will apply only to a very small number of people—those who repeatedly ignore the restrictions and regulations under Schedule 2 and Chapter II.

I did not express a view about the amendment tabled by the noble Baroness, Lady Young. I support that amendment. I believe that it is right and proper that such sanctions should apply to breaches of nature conservation. However, as my noble friend Lord Marlesford rightly said, it is equally important that sanctions should apply not only to nature conservation issues. The regulations and restrictions are imposed for a good reason. Landowners want to seek restriction orders because they wish to manage their land effectively. Such orders are not imposed light-heartedly; they are imposed for a very good reason. As a result, I do not believe that the civil actions which at present are open to owners and occupiers are sufficient.

The noble Lord, Lord McIntosh, said that he has increased the period during which people will be asked to leave land from 24 to 72 hours. We acknowledge and accept that. He went on to say that people who are in breach of what I believe he described as "simple offences" would be caught by my amendment. However, people will be asked to leave land three times—not once, not twice, but three times. If they do not get the message then, quite frankly, I believe that they are worthy of some degree of criminal sanction; namely, a £200 fine. I do not consider that what we are imposing under this amendment is particularly draconian.

Therefore, I am disappointed by the response from the Minister. I am also disappointed, but not unduly surprised, by the response that we heard from the Liberal Democrat Benches. I am bound to make the general comment that farmers from the West Country who read this Bill must seriously wonder what the Liberals do to deserve so many seats in rural Britain in view of the way that they have treated people in relation to this Bill. But that is another point.

Baroness Miller of Chilthorne Domer

My Lords, although I accept some anger from the noble Earl because we do not support this amendment, he will concede that we pushed with the Conservative Benches for the 72-hour extension for exclusion; we pushed for tighter controls on dogs; and we pushed for weekend closures. All those measures had our full support. All the measures to help farmers that the Government conceded received our full support. In many cases we worked with the Conservative Benches and in some cases directly with the Government. I believe that his remarks are unjustified.

Earl Peel

My Lords, of course I acknowledge that in some cases the noble Baroness has helped and supported us. I was intending to acknowledge that when we came to discuss the Question That the Bill do now pass. However, on the bulk of the issues in this Bill relating to rural matters, I am afraid that the noble Baroness has not been supportive and she has certainly not been very supportive in the Division Lobbies.

I am afraid that I am not satisfied by the response from the Minister. Therefore, I wish to seek the opinion of the House.

4.47 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 98; Not-Contents, 187.

Division No. 1
CONTENTS
Ackner, L.	Listowel, E.
Allenby of Megiddo, V.	Liverpool, E.
Anelay of St Johns, B.	McColl of Dulwich, L.
Arran, E.	Mackay of Ardbrecknish, L.
Attlee, E.	Mancroft, L.
Beaumont of Whitley, L.	Marlesford, L.
Blatch, B.	Marsh, L.
Brabazon of Tara, L.	Mayhew of Twysden, L.
Bridges, L.	Miller of Hendon, B.
Brookeborough, V.	Molyneaux of Killead, L.
Brougham and Vaux, L.	Monro of Langholm, L.
Buscombe, B.	Monson, L.
Butterworth, L.	Montrose, D.
Byford, B.	Mowbray and Stourton, L.
Campbell of Alloway, L.	Murton of Lindisfarne, L.
Campbell of Croy, L.	Noakes, B.
Carnarvon, E.	Northbrook, L.
Carnegy of Lour, B.	Northesk, E. [Teller]
Carver, L.	O'Cathain, B.
Chadlington, L.	Onslow, E.
Courtown, E.	Oxfuird, V.
Craig of Radley, L.	Palmer, L.
Cranborne, V.	Park of Monmouth, B.
Crickhowell, L.	Patten, L.
Darcy de Knayth, B.	Pearson of Rannoch, L.
Dixon-Smith, L.	Peel, E.[Teller]
Dundee, E.	Platt of Writtle, B.
Eden of Winton, L.	Plumb, L.
Elles, B.	Plummer of St. Marylebone, L.
Elliott of Morpeth, L.	Prior, L.
Elton, L.	Rees, L.
Erroll, E.	Renton, L.
Ferrers, E.	Renton of Mount Harry, L.
Gardner of Parkes, B.	Roberts of Conwy, L.
Geddes, L.	Seccombe, B.
Glentoran, L.	Selborne, E.
Hanham, B.	Selsdon, L.
Hayhoe, L.	Shaw of Northstead, L.
Hereford, Bp.	Soulsby of Swaffham Prior, L.
Higgins, L.	Strange, B.
Hooper, B.	Strathclyde, L.
Howe, E.	Taylor of Warwick, L.
Howell of Guildford, L.	Tenby, V.
Hunt of Wirral, L.	Thomas of Gwydir, L.
Jellicoe, E.	Vivian, L.
Jopling, L.	Waddington, L.
Kingsland, L.	Williamson of Horton, L.
Laird, L.	Wolfson, L.
Lang of Monkton, L.	Young, B.
NOT-CONTENTS
Acton, L.	Bradshaw, L.
Addington, L.	Bragg, L.
Ahmed, L.	Brennan, L.
Alderdice, L.	Brett, L.
Amos, B.	Brooke of Alverthorpe, L.
Andrews, B.	Burlison, L.
Attenborough, L.	Carter, L. [Teller]
Bach, L.	Chandos, V.
Barker, B.	Christopher, L.
Barnett, L.	Clarke of Hampstead, L.
Bassam of Brighton, L.	Clement-Jones, L.
Berkeley, L.	Clinton-Davis, L.
Bernstein of Craigweil, L.	Cocks of Hartcliffe, L.
Billingham, B.	Cohen of Pimlico, B.
Blackstone, B.	Crawley, B.
Borrie, L.	Dahrendorf, L.

David, B.	MacKenzie of Culkein, L.
Davies of Coity, L.	Mackie of Benshie, L.
Davies of Oldham, L.	McNally, L.
Dean of Thornton-le-Fylde, B.	Maddock, B.
Desai, L.	Mar and Kellie, E.
Dholakia, L.	Massey of Darwen, B.
Donoughue, L.	Merlyn-Rees, L.
Dubs, L.	Methuen, L.
Elder, L.	Miller of Chilthorne Domer, B.
Elis-Thomas, L.	Mishcon, L.
Evans of Parkside, L.	Mitchell, L.
Evans of Watford, L.	Molloy, L.
Ezra, L.	Morgan, L.
Falconer of Thoroton, L.	Morris of Castle Morris, L.
Falkland, V.	Newby, L.
Farrington of Ribbleton, B.	Nicholson of Winterbourne, B.
Faulkner of Worcester, L.	Nicol, B.
Filkin, L.	Northover, B.
Fitt, L.	Oakeshott of Seagrove Bay, L.
Gale, B.	Parekh, L.
Gibson of Market Rasen, B.	Paul, L.
Gilbert, L.	Peston, L.
Gladwin of Clee, L.	Plant of Highfield, L.
Goldsmith, L.	Prys-Davies, L.
Goodhart, L.	Puttnam, L.
Gordon of Strathblane, L.	Ramsay of Cartvale, B.
Goudie, B.	Randall of St. Budeaux, L.
Gould of Potternewton, B.	Razzall, L.
Grabiner, L.	Rea, L.
Graham of Edmonton, L.	Rendell of Babergh, B.
Greaves, L.	Rennard, L.
Greengross, B.	Richard, L.
Grenfell, L.	Rodgers of Quarry Bank, L.
Hamwee, B.	Rogers of Riverside, L.
Hardy of Wath, L.	Roll of Ipsden, L.
Harris of Greenwich, L.	Roper, L.
Harris of Haringey, L.	Russell, E.
Harris of Richmond, B.	Russell-Johnston, L.
Harrison, L.	Sainsbury of Turville, L.
Haskel, L.	Sawyer, L.
Haskins, L.	Scotland of Asthal, B.
Hattersley, L.	Scott of Needham Market, B.
Hayman, B.	Sharman, L.
Hilton of Eggardon, B.	Sharp of Guildford, B.
Hollis of Heigham, B.	Shepherd, L.
Holme of Cheltenham, L.	Shore of Stepney, L.
Hooson, L.	Shutt of Greetland, L.
Howells of St. Davids, B.	Simon, V.
Howie of Troon, L.	Simon of Highbury, L.
Hughes of Woodside, L.	Smith of Clifton, L.
Hunt of Chesterton, L.	Stone of Blackheath, L.
Hunt of Kings Heath, L.	Strabolgi, L.
Hutchinson of Lullington, L.	Symons of Vernham Dean, B.
Irvine of Lairg, L. (Lord Chancellor)	Taylor of Blackburn, L.
	Thomas of Walliswood, B.
Islwyn, L.	Thomson of Monifieth, L.
Jacobs, L.	Thornton, B.
Janner of Braunstone, L.	Tomlinson, L.
Jay of Paddington, B. (Lord Privy Seal)	Tope, L.
	Tordoff, L.
Jeger, B.	Turner of Camden, B.
Jenkins of Putney, L.	Uddin, B.
Judd, L.	Walker of Doncaster, L.
Kennedy of The Shaws, B.	Wallace of Coslany, L.
King of West Bromwich, L.	Wallace of Saltaire, L.
Layard, L.	Walmsley, B.
Lea of Crondall, L.	Walpole, L.
Lester of Herne Hill, L.	Warner, L.
Linklater of Butterstone, B.	Warwick of Undercliffe, B.
Lipsey, L.	Watson of Invergowrie, L.
Lockwood, B.	Watson of Richmond, L.
Longford, E.	Wedderburn of Charlton, L.
Macdonald of Tradeston, L.	Whitaker, B.
McIntosh of Haringey, L. [Teller]	Whitty, L.
	Wigoder, L.
McIntosh of Hudnall, B.	Wilkins, B.

Williams of Crosby, B.	Winston, L.
Williams of Elvel, L.	Woolmer of Leeds, L.
Williams of Mostyn, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.57 p.m.

Lord Roberts of Conwy moved Amendment No. 4: After Clause 2, insert the following new clause—

cc970-1008
1. INTENTION TO REMAIN ON ACCESS LAND: OBLIGATION TO GIVE NOTICE 20,124 words, 3 divisions
cc1008-33
2. COMPENSATION FOR DIMINUTION IN VALUE OF LAND 13,044 words, 1 division
cc1033-66
3. OBLIGATION IN RESPECT OF MANAGEMENT PLANS 8,704 words, 1 division
cc1050-1
1. Wildlife and Countryside Act 1981 (c. 69) 466 words
cc1051-66
2. Exceptions to presumption in section 34(2). 7,608 words, 1 division