§ (" .—(1) A person who intends to enter or to remain on access land during any period from one hour after sunset on one day to one hour before sunrise on the following day shall give prior notice of that intention to the access authority.
§ (2) The access authority shall draw to the attention of any person giving such notice, the relevant sections of the code of conduct and other information issued by the appropriate countryside agency under section 20.").
§ The noble Lord said: My Lords, I make no apology for returning to the subject of night access because I honestly believe that the Government are wrong in treating it in the same way as day access when plainly it carries more hazards. Your Lordships will be relieved to hear that I shall not describe those hazards or rehearse the arguments advanced during earlier discussions, except to say that I believe that the Government's imperviousness to those arguments arises in part from the fact that they appear to think that things will be much the same as they are after this Bill becomes law. They seem to take little account of the millions of acres that will become accessible to the public, much for the first time, or the unknown thousands of people who will take advantage of the access that will become available to them.
§ I believe that it is wrong—indeed, some might say irresponsible—not to seek to anticipate the consequences of the passage of the Bill and make the necessary provision to ensure people's safety in the exercise of their rights and the peace of mind of others who may be affected by such exercise. As we heard many times in the course of our discussions, it is generally accepted that it is good practice to inform others when venturing out at night in hazardous areas where accidents may occur. Clearly, there is a strong argument for formalising such good practice and giving such information to the access authority for a particular area which will be familiar with the hazards and can tell the visitor of them in advance.
§ The access authority will thus be able to draw the attention of the visitor to particular hazards or activities that he or she may encounter and give any other advice or guidance as appropriate. The authority will know the whereabouts of the visitor should an accident befall him or her and that may save valuable time if a rescue operation has to be mounted.
§ I am glad to say that the Government seem to have come some way towards acknowledging the principle that people require guidance. That is in the 971 Government's new Clause 20 which prescribes codes of conduct for the guidance of persons exercising their right of access and others interested in access land. But those codes will be national documents drawn up on a countrywide scale by the Countryside Agency for England and the Countryside Council for Wales. Neither document is likely to be sufficiently detailed or up to date to assist the night visitor to a particular area on a particular day, although subsections (3) and (4) of the new clause open up the possibility of more detailed and specific guidance being provided by subsidiary bodies such as access authorities.
I was impressed by the statement of the noble Lord, Lord Whitty, on the second day of Report stage. He was dealing with Amendment No. 138 advanced by my noble friend Lord Rotherwick, indicating, naturally, his preference for government Amendment No. 104. The noble Lord said:
It will cover not only the standing rights but also what have been described by the noble Viscount, Lord Bledisloe, as transient rights. There is an obligation to try to maximise the information in various ways. That includes all means from web sites to leaflets and notices in car parks. The obligation will be all embracing".—[Official Report, 7/11/00; col. 1463].
§ I drafted my amendment with those possibilities in mind. Incidentally, the countryside agency in the amendment should appear in lower case to cover both the Countryside Agency for England and the Countryside Council for Wales. Therefore, my amendment seeks to link the giving of prior notice of a night visit to the receipt in return of relevant guidance and information from the access authority. That is surely a sensible precautionary measure. It is difficult to see why the Government should resist it. It is easily practicable and at minimal cost. It might all be done on a telephone answering machine. There is no penalty for failure to give prior notice or liability on the part of the authority if the information it gives is inadequate. As I said on an earlier occasion, all we are trying to do in this amendment is to give statutory backing to current best practice. I beg to move.
§ 5 p.m.
§ Baroness Strange
My Lords, I support the noble Lord, Lord Roberts of Conwy. I believe that all of us in this House are aware that this is a listening Government. I have proof of this and I am very grateful. Why, then, will they not listen to the question of night access and why, when they have understood so many issues, do they remain so intransigent on this one? I know that there are not many shepherds, hill farmers and gamekeepers living in the remote access areas concerned, but they still have voices. They are all nervous of people they do not know roaming about at night. I beseech Her Majesty's Government to hear their voices and the voices of animals and birds who live or roost in these areas and do not want to be disturbed at night. Their voices are sometimes difficult to hear. I am speaking also for them.
§ Lord Monro of Langholm
My Lords, the Government's attitude throughout this Bill to night operations is the biggest mystery of all. Everything we try to do is to help the person who is on the hill at night. They have the right to be on footpaths and so on, but to encourage persons in any way to walk across open moorland at night is the most foolhardy recommendation that one could possibly give.
When I was Minister for rural affairs in Scotland we had responsibility for mountain rescue. One knows of the tremendous and valiant efforts which were made by the Royal Air Force, the mountain rescue teams and the police looking for and finding people—often the bodies of those who had gone out at night or day, misjudged their timing and become lost in the dark and never returned home. Yet a simple notice left on the windscreen of their motor car, at their digs, hotel or police station, or any form of notification, might have saved lives. Not only that, but it would have prevented putting the lives of the rescue teams at risk.
We were often under pressure to make a charge for rescue but, rightly, the government said no; that their duty was to rescue and not make a charge or insist on insurance to cover the cost of rescue. We are here making a simple suggestion: that those who wish to be out at night—I am very much against making any kind of recommendation that people should be on open land at night if they are not sure what they are doing—at the very least should inform the appropriate authority of what they are doing and where they are, so that if they get into difficulties they can be assisted. Why the Government should resist this amendment is beyond my comprehension. I expect that they are going to accept it.
My Lords, this is a vitally important amendment. Is not the worst feature of this Bill—it is a very good Bill in many ways—that it gives the right to roam after dark, which could result in tragedy? If there is fog, mist, cloud or snow and urban people have been given the right to roam but do not know their way about a particular moorland or other part of the country, that may cause serious danger and tragedy. That is such a possibility that in the next Parliament it is likely that, whichever government are in power, they will have to amend this part of the Bill if the amendment is not accepted. It is vital. People could become lost after dark, be injured, killed or fall ill.
Another problem arising from the right to roam after dark is that it will lead to an increase in rural crime, which is already bad enough in East Anglia. The right to roam after dark would be an invitation to burglars, poachers, cattle thieves and sheep stealers. The Government should therefore welcome the amendment. I hope my noble friend Lord Roberts will not mind my saying that the provision should not be confined to those who simply "intend" to enter or remain on access land; it should apply also to those who actually do enter or remain.
973 If the amendment is accepted by your Lordships this evening, it would be no trouble to the Government to suggest in another place that instead of the words,intends to enter or remain",the provision should read, "enters or remains". That simple amendment would achieve the purpose. My noble friend Lord Roberts of Conwy has done great work in tabling this amendment and I earnestly hope that it will be accepted.
§ Baroness Farrington of Ribbleton
My Lords, perhaps I can respectfully remind noble Lords that arguments rehearsed in Committee and on Report should not be repeated at Third Reading.
§ Lord Jopling
My Lords, I listen with care to what the noble Baroness says from the Government Front Bench. I was hoping that the noble Baroness, Lady Young of Old Scone, would have something to say on this issue because I want to raise a point which I certainly have not heard mentioned before.
I was one of the first to suggest, in Committee, that people who go on to access land at night should telephone their intention to an answerphone. Since then, having thought about the matter, it occurs to me that another danger arises when people roam at night which has not previously been discussed. Perhaps I can explain that in my constituency in the Lake District, we had the first example for many years of eagles nesting. The Royal Society for the Protection of Birds—that is why I mentioned the noble Baroness, Lady Young—each year mounted a watch on the nests of those eagles. I believe that is also done in other parts of the country for rare birds.
The society was protecting the nests and the chicks from nest robbers. As I understand it, eggs and chicks can command extremely high prices on the illegal market. If people are allowed to enter and roam about on land at will at night, then it is almost impossible for organisations like the RSPB to keep a watch on the nests of rare birds and protect them from nest robbers during the hours of darkness. That creates a huge problem for those wanting to protect the nests of rare birds in upland areas.
If a person is apprehended near one of the nests, perhaps having found out where the nest is in daylight and crept back at night to rob it, he could easily say that he is there because of his rights under the Bill. But if people had to give prior notice of their intention to be on that land at night, that would be a deterrent to potential nest robbers. This is a new point. I have not heard it raised before and I hope that the noble Baroness, Lady Young, who has so much experience of these matters, will comment on it.
§ Lord Jopling
My Lords, if the noble Lord will give way, we are talking about areas other than the Lake District. I mentioned the Lake District as an example 974 of an area where the nests of rare birds are protected. But nest robbing happens in all the upland areas and not just in the Lake District.
§ Lord Dubs
My Lords, I hope the Whip on the Front Bench will allow me to utter one sentence. My point is simply this. The criticisms being made of the right to roam at night apply in theory to the Lake District, yet there is no evidence that the present right to roam in that area is being abused in the way it is suggested it would be elsewhere in the country. It works in the Lake District. Nobody has proved that it does not and that surely gives the lie to the arguments that the Bill will be a tragedy for the countryside, for people or wildlife if we do not accept this amendment.
§ Lord Roberts of Conwy
My Lords, does not the noble Lord realise that there will be a tremendous extension of the area open to access and a considerable increase in the numbers of people exercising their rights? Therefore we are seeking in this Bill to prepare for the consequences of its operation.
§ Baroness Byford
My Lords, I wonder whether the noble Lord will give way. I can accept, from these Benches, what the noble Baroness said. We are now into a dialogue across the Chamber and we should perhaps return to the amendment.
§ Lord Dubs
My Lords, I accept what the noble Baroness says. I shall be brief. I gave way to some interruptions. I thought the noble Baroness was taking on the role of the Whip and telling me not to repeat arguments that we heard in earlier stages of the Bill, which I accept.
I simply want to say this. Safety in upland areas is obviously important. But the points made in relation to possible hazards to walkers apply in daylight as well as at night. If there is fog, mist, cloud or snow, that is a potential hazard to walkers both by day and by night. Most of the arguments on safety apply 24 hours a day.
I would argue that we need to give walkers advice. We need codes. We need to educate people who want to walk so that they conform to safety procedures around the clock, whether it is listening to weather forecasts, knowing how to use a map and compass or being suitably attired. Those are all matters of safety in the hills. I do not believe that a phone call to an anonymous telephone answering machine giving one generalised information about the area will add to the safety of walkers. We need to educate them and teach them how to look after themselves safely on the hills, with respect for the countryside, the environment and wildlife. That is what the Bill is about and this amendment will not help to achieve that end.
§ 5.15 p.m.
§ Lord Judd
My Lords, I rise simply to ask the noble Lord, Lord Roberts, how on earth he intends to enforce his proposal. For it to be fulfilled will require 975 a tremendous degree of voluntary commitment by everybody affected. That will not happen until, as my noble friend Lord Dubs argued very tellingly, the public education programme has been successful.
§ Baroness Young of Old Scone
My Lords, I did not intend to speak and do so only because I was asked. I want to reassure the noble Lord, Lord Jopling, that if in fact a rare bird of the sort he described were nesting on access land, the current provisions both to put in wardens and prevent accidental disturbance would be perfectly adequate.
We know already that egg stealers are extremely devious and very professional. I do not believe that having to phone an answerphone and leave their name is the sort of thing that professional thieves—that is what egg stealers are—generally do.
§ Baroness Byford
My Lords, I rise to support my noble friend's amendment. I am conscious of what was said by the noble Baroness, Lady Farrington, but I believe that things have changed since the previous stage. The amendment refers to,the relevant sections of the code of conduct",and I believe that at the previous stage the code of conduct was not part of the Bill. Therefore, I believe that we are "free" to speak to the amendment.
The situation has changed because, if what is rumoured in the press comes into force, hunting will be banned by the Government. That brings us back to the issue of lamping, which was raised earlier. If hunting is banned, foxes must be controlled somehow. One such way is by lamping at night with bright lights. I believe that the amendment should receive serious attention because we are trying to ensure that walkers are secure.
I take the point that circumstances are equally as dangerous when fog descends during the day. But many days are clear and bright, which is when people walk in the countryside. Therefore, the muddying of the issue as regards daylight and nightlight is not relevant because there are more nights than dark days. I hope that the House will support the amendment.
§ Earl Peel
My Lords, I rise briefly to support my noble friend. He has gone to a great deal of trouble to find a solution to a difficult and thorny question. I realise that the Government have made a firm commitment but my noble friend's amendment will not compromise night-time access. I subscribe to the views of noble Lords opposite because the safety of walkers as such does not concern me. Of course I am concerned if someone damages himself, but I believe that the breath of nanny is a little heavy on this issue. If people want to walk at night and take the risks, that is entirely up to them.
My concern has always been the damage which might be caused to wildlife because of potential rustling, poaching and so forth. I am concerned with the criminal aspect. My noble friend had to table a compromise amendment and therefore it does not address that problem as perhaps he and others would 976 wish. However, the provision that people must inform a local authority would go some way towards deterring potential mischief makers. From that point of view alone, my noble friend has tabled an amendment which is extremely helpful and useful.
§ Lord Whitty
My Lords, the noble Lord, Lord Roberts, says that we have been impervious to his arguments. We have not been entirely impervious: at Report stage I said that there were some superficial attractions for prior notification. Indeed, I can see that in some unsafe areas a system of prior notification may be sensible. However, his amendment applies universally to all access land and notification is compulsory in all circumstances for night-time access.
Even if that were desirable, it would create a huge administrative effort to little effect. It is not clear what the access authorities would do with the information. Would they be required to notify the landowner? If so, that would be a huge bureaucratic requirement. One would not expect the walker to be able to identify every landowner over whose land he was walking and so forth.
Perhaps I may reiterate the point made by my noble friend Lord Dubs. There are huge areas of access land to which night access is familiar and frequent in terms of both statutory and voluntary access. If we were to require prior notification in the Lake District, for example, the telephone line would at certain times of the year be inundated with calls which would not be referred to the landowner or anyone else. It is therefore useless information.
We certainly need codes and maximum information, and the access authorities and countryside bodies already have duties in that respect. As was said by my noble friend Lady Young, if there is a problem of nature conservation in a particular area the Bill already provides for local closures or restrictions. I believe that to be the case in relation to problems of land management, vermin control and so forth.
In any event, the requirement would be virtually impossible to enforce. It would require the construction of a considerable bureaucracy and a system of notification thereafter. It does not appear to provide any great benefit to landowners because there is no requirement to notify them. Its effect seems obscure.
Moreover, all experience of access land so far suggests that a prior notification system for night access is not necessary and has not caused serious problems, but noble Lords should recognise that the proposal applies to all access land. It means that, for example, if after 4.30 on a December evening I wanted to walk on to the common land at the back of my garden I would have to notify the authority that I was going to do so. That is completely absurd in relation to a piece of common land within a country town. The same would apply to a great deal of down land.
977 The approach is far too comprehensive. Furthermore, some of the latter comments reflect the belief that people who avail themselves of night-time access are up to no good. We have had reference to poachers, rustlers and egg stealers and at earlier stages even to devil worshippers. I am not familiar with any of those groups of people but I do not believe that they usually check on the restrictions which apply to the land on which they are carrying out their nefarious activities. The argument that more people now have a right to be on the land can work both ways. In some situations, the more people who are there, the less likely it is that such operations will be carried out. We agree with those bodies who manage areas of access land. The National Trust, for example, indicates that allowing access to a large number of people reduces criminality in those areas.
I believe that the amendment is misplaced in that it misidentifies the problem. In any event, it would be impossible to operate and would apply so universally as to make a nonsense of short night-time walks in many parts of the country. It also adds to the occasional tendency to stigmatise those few people who might avail themselves of night-time access to the more remote areas. That is not to say that in some localities voluntary systems of access notification would not be appropriate, particularly in dangerous areas. At an earlier stage, the noble Lord, Lord Roberts, explained the situation on Snowdonia. That may well be valid but as a general requirement it would not work, it is not necessary and it misidentifies the problem. I therefore hope that he will not press the amendment.
§ Lord Roberts of Conwy
My Lords, I am grateful to all noble Lords who have spoken and made such valuable points, in particular the comment of my noble friend Lord Jopling about the need for the amendment in relation to the safety of birds. I am afraid that I totally disagree with the noble Lord, Lord Dubs. He began by saying that day and night access were much the same. As far as I am concerned, the great difference is that one can see by day but one cannot see by night. At night, one cannot see the unfenced quarry or the hazards which lurk in the dark.
Yes, we are concerned about safety, criminality and all the other factors. The Minister said that there are many areas where people are accustomed to walking at night and nothing untoward happens.
That is, I am sure, the case in many parts of England and Wales but there are also vast tracts of virtually unknown territory that are about to be declared access land. Living on the edge of the Snowdonia National Park, I am very much aware of the dangers that already exist: the fatalities and the accidents that occur in Snowdonia by day. All one can do is simply to imagine what could happen with access at night.
So I do not think this is an absurd amendment in the extent of its application. Yes, of course there is no penalty for failure to notify, and it may well be that where night access is already available in popular areas 978 people will not give prior notification. But surely in the new areas, where hazards abound, they should give prior notice of their intentions.
The Minister says that that will involve a huge administrative exercise. I simply cannot believe that is the case. As my noble friend Lord Jopling suggested much earlier in our proceedings, people could give prior notification by telephone so that at least someone would know their whereabouts in the event that they go missing or an accident befalls them.
I am very dissatisfied with the Government's reply, and am inclined to believe, as my noble friend Lord Renton has stated, that we shall have to come back to this with amending legislation in due course when we see what is the actual effect of this Bill and its consequences. In view of the inadequacy of the Government's reply, I shall test the opinion of the House.
§ 5.33 p.m.
§ On Question, Whether the said amendment (No. 4) shall be agreed to?
§ Their Lordships divided: Contents, 80; Not-Contents, 185.980
|Division No. 2|
|Allenby of Megiddo, V.||McColl of Dulwich, L.|
|Ampthill, L.||Mackay of Ardbrecknish, L.|
|Anelay of St Johns, B.||Mancroft, L.|
|Arran, E.||Marlesford, L.|
|Attlee, E.||Marsh, L.|
|Blatch, B.||Miller of Hendon, B.|
|Brabazon of Tara, L.||Monro of Langholm, L.|
|Brookeborough, V.||Montrose, D.|
|Brougham and Vaux, L.||Mowbray and Stourton, L.|
|Buscombe, B.||Mutton of Lindisfarne, L.|
|Byford, B.||Noakes, B.|
|Campbell of Alloway, L.||Northbrook, L.|
|Campbell of Croy, L.||Northesk, E.|
|Carnegy of Lour, B.||O'Cathain, B.|
|Chadlington, L.||Onslow, E.|
|Colwyn, L.||Palmer, L.|
|Courtown, E.||Park of Monmouth, B.|
|Craig of Radley, L.||Peel, E.|
|Craigavon, V.||Platt of Writtle, B.|
|Cranborne, V.||Plumb, L.|
|Dixon-Smith, L.||Plummer of St. Marylebone, L.|
|Dundee, E.||Prior, L.|
|Elliott of Morpeth, L.||Rees, L.|
|Elton, L.||Renton, L.|
|Erroll, E.||Renton of Mount Harry, L.|
|Ferrers, E.||Roberts of Conwy, L. [Teller]|
|Gardner of Parkes, B.||Seccombe, B. [Teller]|
|Geddes, L.||Selborne, E.|
|Glentoran, L.||Shaw of Northstead, L.|
|Hambro, L.||Simon of Glaisdale, L.|
|Hanham, B.||Soulsby of Swaffham Prior, L.|
|Hayhoe, L.||Stewartby, L.|
|Higgins, L.||Strange, B.|
|Hooper, B.||Strathclyde, L.|
|Howe, E.||Thomas of Gwydir, L.|
|Howell of Guildford, L.||Vivian, L.|
|Hunt of Wirral, L.||Waddington, L.|
|Jopling, L.||Wilcox, B.|
|Kingsland, L.||Wolfson, L.|
|Liverpool, E.||Young, B.|
|Acton, L.||Hollis of Heigham, B.|
|Addington, L.||Hooson, L.|
|Ahmed, L.||Howells of St. Davids, B.|
|Alderdice, L.||Howie of Troon, L.|
|Amos, B.||Hughes of Woodside, L.|
|Andrews, B.||Hunt of Chesterton, L.|
|Archer of Sandwell, L.||Hunt of Kings Heath, L.|
|Attenborough, L.||Hutchinson of Lullington, L.|
|Bach, L.||Irvine of Lairg, L. (Lord Chancellor)|
|Barnett, L.||Islwyn, L.|
|Bassam of Brighton, L.||Jacobs, L.|
|Beaumont of Whitley, L.||Janner of Braunstone, L.|
|Berkeley, L.||Jay of Paddington, B. (Lord Privy Seal)|
|Bernstein of Craigweil, L.|
|Billingham, B.||Jeger, B.|
|Blackstone, B.||Jenkins of Putney, L.|
|Borrie, L.||Judd, L.|
|Bradshaw, L.||Kennedy of The Shaws, B.|
|Bragg, L.||King of West Bromwich, L.|
|Brennan, L.||Layard, L.|
|Brett, L.||Lea of Crondall, L.|
|Brooke of Alverthorpe, L.||Lester of Herne Hill, L.|
|Burlison, L.||Linklater of Butterstone, B.|
|Carter, L.[Teller]||Lipsey, L.|
|Chandos, V.||Lockwood, B.|
|Christopher, L.||Longford, E.|
|Clarke of Hampstead, L.||Macdonald of Tradeston, L.|
|Clement-Jones, L.||McIntosh of Haringey, L. [Teller]|
|Cocks of Hartcliffe, L.||McIntosh of Hudnall, B.|
|Cohen of Pimlico, B.||MacKenzie of Culkein, L.|
|Crawley, B.||Mackie of Benshie, L.|
|Dahrendorf, L.||McNally, L.|
|David, B.||Maddock, B.|
|Davies of Coity, L.||Mar and Kellie, E.|
|Davies of Oldham, L.||Massey of Darwen, B.|
|Dean of Thornton-le-Fylde, B.||Merlyn-Rees, L.|
|Desai, L.||Methuen, L.|
|Dholakia, L.||Miller of Chilthorne Domer, B.|
|Donoughue, L.||Mitchell, L.|
|Dubs, L.||Molloy, L.|
|Elder, L.||Morgan, L.|
|Elis-Thomas, L.||Morris of Castle Morris, L.|
|Evans of Parkside, L.||Newby, L.|
|Evans of Watford, L.||Nicholson of Winterbourne, B.|
|Ezra, L.||Nicol, B.|
|Falconer of Thoroton, L.||Northover, B.|
|Falkland, V.||Oakeshott of Seagrove Bay, L.|
|Farrington of Ribbleton, B.||Parekh, L.|
|Faulkner of Worcester, L.||Peston, L.|
|Filkin, L.||Phillips of Sudbury, L.|
|Gibson of Market Rasen, B.||Prys-Davies, L.|
|Gilbert, L.||Puttnam, L.|
|Gladwin of Clee, L.||Ramsay of Cartvale, B.|
|Goldsmith, L.||Randall of St. Budeaux, L.|
|Goodhart, L.||Razzall, L.|
|Gordon of Strathblane, L.||Rea, L.|
|Gould of Potternewton, B.||Redesdale, L.|
|Grabiner, L.||Rendell of Babergh, B.|
|Graham of Edmonton, L.||Rennard, L.|
|Greaves, L.||Richard, L.|
|Greengross, B.||Rodgers of Quarry Bank, L.|
|Grenfell, L.||Rogers of Riverside, L.|
|Hamwee, B.||Roper, L.|
|Hardy of Wath, L.||Russell, E.|
|Harris of Greenwich, L.||Russell-Johnston, L.|
|Harris of Haringey, L.||Sainsbury of Turville, L.|
|Harris of Richmond, B.||Sawyer, L.|
|Harrison, L.||Scotland of Asthal, B.|
|Haskel, L.||Scott of Needham Market, B.|
|Haskins, L.||Sharman, L.|
|Hattersley, L.||Sharp of Guildford, B.|
|Hayman, B.||Shepherd, L.|
|Hilton of Eggardon, B.||Shore of Stepney, L.|
|Shutt of Greetland, L.||Wallace of Saltaire, L.|
|Simon, V.||Walmsley, B.|
|Simon of Highbury, L.||Walpole, L.|
|Smith of Clifton, L.||Warner, L.|
|Stone of Blackheath, L.||Warwick of Undercliffe, B.|
|Strabolgi, L.||Watson of Invergowrie, L.|
|Symons of Vernham Dean, B.||Watson of Richmond, L.|
|Taylor of Blackburn, L.||Weatherill, L.|
|Thomas of Walliswood, B.||Wedderburn of Charlton, L.|
|Thomson of Monifieth, L.||Whitaker, B.|
|Thornton, B.||Whitty, L.|
|Tomlinson, L.||Wigoder, L.|
|Tope, L.||Wilkins, B.|
|Tordoff, L.||Williams of Crosby, B.|
|Turnberg, L.||Williams of Elvel, L.|
|Turner of Camden, B.||Williams of Mostyn, L.|
|Uddin, B.||Winston, L.|
|Walker of Doncaster, L.||Woolmer of Leeds, L.|
|Wallace of Coslany, L.||Young of Old Scone, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.44 p.m.
§ Clause 3 [Power to extend to coastal land]:
Baroness Byford moved Amendment No. 5:
Leave out Clause 3.
The noble Baroness said: My Lords, I rise to move Amendment No. 5. In the very small hours of 4th October the Minister told the House that the Countryside Agency had advised the Government to extend the right of access to coastal land. He went on to say:
There was not enough time to sort out the matter and to undertake the necessary consultations, which I fully accept are necessary".—[Official Report, 3/10/00; col. 1427]
Because the Government have such a crowded schedule in both Houses we are to be denied the right to consider, debate and amend any of the regulations which will apply to the whole of the coastline of England and Wales. The procedure will be that of affirmative resolution, which is not the same as the full-blown Bill process. Areas of outstanding natural beauty were regarded as of such importance that they were added to this part of the Bill, yet coastal land covers many more thousands of miles than AONBs.
§ Access to coastal land is not the same as access to open country: the land itself, the pattern of ownership, the extent of existing access and the level of local authority control are different. Coastal land is subject to forces that do not apply further inland. One has in mind the miles of land on the east coast that have fallen into the sea and the many more which will, sadly, follow over the next few years. Coastal land is the edge of country; obviously, it is also the edge of the sea.
§ Many noble Lords will be aware that at the moment the maritime industry, of which we have spoken in earlier debates, is not very healthy. Our traditional relationship with the waters that surround us is under threat from global warming, other maritime nations and our actions. The question of open access to our coasts should be removed from the arena of the Bill and considered in the context of a maritime 981 investigation. At least that might provide an opportunity for sufficient government time to consider this important subject properly. I beg to move.
§ Lord Whitty
My Lords, we had a fair run at the issue of coastal land at an earlier stage of the Bill, albeit the noble Baroness is right that that was in the early hours of the morning. As to the principle, coastal land is regarded by most people as open country. In the 1949 Act open country was defined as,wholly or predominantly of covered mountain, moor, heath, down, cliff or foreshore".Therefore, prior to this Bill coastal land was regarded, both legislatively and in popular view, as open country. For many people coastal land is the most accessible and popular form of open country.
The noble Baroness is correct to say that the reason it was not included in the Bill was in part because of the complexity and nature of the land and also because the Countryside Agency's advice to us was that provision should be made for it but with widespread consultation to ensure the practicalities of application. It is those practicalities which have led us to insert an order-making power rather than provide for coastal land to be covered by the Bill.
The provision to enable the right of access to be extended by order provides the opportunity to do all the work that is required to deal with complex problems, some of which the noble Baroness referred to, and to take account of experience in the management of other areas of access land. We have given very firm undertakings that we shall consult widely before we ever use that power and that any order will be accompanied by a full regulatory impact assessment. The consultation and the wide assessment of the impact needs to be part of that process, which will be subject to the affirmative resolution procedure. There has been concern about the details. However, those details will be sorted out within that process.
At earlier stages noble Lords debated the definition of coastal land and the various powers to make access work. Those debates indicated that the Government were right to take this matter somewhat slowly because of the complexities involved. Nevertheless, if we are able to resolve the complexities the principle that coastal land is subject to open access should be part of the Bill. I do not guarantee either way that the Government will ever trigger this clause because they recognise the complexity of the matter. But when one is considering a major piece of legislation that deals with open country the possibility of extending it to coastal land, which is beloved by so many walkers and families and should, in principle, be subject to the same provisions, ought to be covered. Whether that can be easily done, how complex it is and what restrictions should he placed on it are matters for a further process, but it should be covered rightly by the provisions of the Bill. I hope that the noble Baroness will not pursue her amendment.
§ Baroness Byford
My Lords, I am disappointed by the Minister's response. It is not that I do not accept his argument about coastal land. Indeed, many noble 982 Lords have probably spent many enjoyable hours on coastal land. My reasoning is that coastal land should have been included in the Bill. I believe that the Minister will acknowledge that we have not had an opportunity to debate the matter fully even though we have been able to add the areas of outstanding natural beauty at the last minute and without proper debate in another place. We seem to have a mishmash of picking and choosing what is and what is not a priority in the Bill. Having said that, and having heard the Minister's response, I shall not test the opinion of the House. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13 [Occupiers' liability]:
Lord Glentoran moved Amendment No. 6:
Page 8, line 38, at end insert ("any historical, traditional or archaeological feature, or").
§ The noble Lord said: My Lords, in moving Amendment No. 6, I wish to speak also to Amendments Nos. 8 and 9. We feel that the Government's Amendment No. 19 does only half the work with regard to mines and quarries. Amendment No. 6 is needed to remove liability under the Occupiers' Liability Act 1984. I understand that the ramblers are worried that unless this liability is removed owners will push for land with mines and so on on it to be excluded entirely from the right of access.
§ The Government have recognised that in deciding the scope of any duty of care owed by the occupier on access land, the importance of maintaining features of historic traditional or architectural interest should be considered. That could include historic features such as abandoned lead or tin mines and quarries or scheduled monuments such as castle ruins. The amendment seeks to ensure that such features are protected by removing liability under the Occupiers' Liability Act for those features. That approach ensures certainty for the occupier; avoids costs for occupiers by ameliorating the need for hazard assessments and increased insurance premiums; avoids the risk of owners removing ancient features for fear of liability; and avoids large tracts of access land affected by historic mining and quarrying having to be excluded by direction from the right of access.
§ It is important to be clear that while government Amendment No. 19 to Clause 42 will provide for regulations to exclude liability for mines and quarries under the Mines and Quarries Act, it will not remove liability in respect of those features under the Occupiers' Liability Act. If the latter liability is not removed, owners will still have to undertake risk assessments and to fence off mines and quarries on access land. That will impose costs and support arguments for compensation. Alternatively, owners will simply apply for directions to exclude such land entirely from the right of access on safety grounds under Clause 25. That will not be in the interests of walkers and mountaineers. That is a point readily recognised by the Ramblers' Association in previous discussions with the CLA.
§ If Amendment No. 6 is accepted and liability excluded under the Occupiers' Liability Act for historic, traditional and archaeological features, there 983 will be no need to seek to exclude land affected by historic mining or quarrying; no implications for costs to be borne by the occupiers of such land in making these features safe; and no action by occupiers to remove ancient features.
§ Among the fraternity of people who will avail themselves of the right of access over access land, there is clear understanding of the hazards. I believe that many of that fraternity would support the amendment.
§ Amendments Nos. 8 and 9 deal with the question of the extent of the exclusion of an occupier's liability for injuries on his land. By virtue of Clause 13(1) of the Bill, any person entering under the access right is not to be treated as a visitor of the occupier. In other words, he is in the same position as a trespasser in relation to duty. However, by virtue of Section 1(3) of the Occupiers' Liability Act 1984, an occupier can owe a duty to a trespasser in certain circumstances. One of the factors in deciding whether or not he owes such a duty is whether he has reasonable grounds for believing that people may come into the vicinity of the danger.
§ Clause 13(2) of the Bill provides that in certain circumstances the occupier owes no duty whatever to a person who is exercising an access right. Thus the person does not even have the rights of an ordinary trespasser. However, those circumstances are limited, as set out in Clause 13(2), as amended on Report.
§ I have sought to extend this exclusion of all liability to include, for example, old barns and so on. During the debate on this and from discussions with the Government, it would appear that the Minister intends the exclusion in Clause 13(2) to apply only to features which are actually on access land. Since buildings are technically not access land, the exclusion therefore does not apply to them. Such a reading of the Bill produces curious effects. For example, "A" and "B" are on access land when a storm occurs. "A" shelters beneath a tree on access land. If a rotten branch collapses on his head he has no claim. However, if "B" takes shelter in the occupier's disused barn and thereby becomes a trespasser, he may have a claim. Furthermore, the fact that the barn is now close to much used access land will increase the likelihood of a duty being found. In other words, the person who breaks the rules is in a better position to claim than a person who obeys them. Amendments Nos. 8 and 9 are designed to deal with this situation. I beg to move.
§ Earl Peel
My Lords, I rise to support my noble friend. In so doing I declare an interest in the amendments. I acknowledge that Amendment No. 19 goes some way towards dealing with the problems we discussed when I moved an amendment at a previous stage of the Bill in connection with quarries and mines. As my noble friend Lord Glentoran rightly said, the amendment does not deal with the question of occupiers' liability. I do not want to repeat what my noble friend has said. He has explained the situation extremely well.
984 As the Bill stands, there are opportunities for an increasing number of litigious cases unless the Government deal with the question of liability. It is a simple matter. If we are to invite people on to private land it is ridiculous that owners should be left with any liability at all. The Minister has gone so far to exclude liability, will he explain why he has left this packet at the end? There must be a good reason for it. To date, I have not had a good explanation for it. I look forward with interest to hearing what the noble Lord has to say in explaining his case.
§ Baroness Carnegy of Lour
My Lords, as one reads the effect of Amendment No. 7, one might be in danger of hurting oneself by going under a wall. Is that really what the Government mean?
§ The Duke of Montrose
My Lords, my Amendment No. 10 is grouped with Amendment No. 6. Unfortunately it has not been possible for the noble Countess, Lady Mar, whose name also appears above the amendment, to stay. She has a great deal of experience with animals in rural situations. I probably need to declare an interest as someone who has been involved for almost 40 years in livestock rearing and in hill land management.
I have read carefully the Minister's reply to the amendment I moved at Second Reading. As I understand the position, it is a little more complicated than that reading of the Minister's reply seems to suggest. Under Section 2 of the Animals Act 1971, the keeper of an animal which causes damage has strict liability if three conditions are met; meaning, that there will be no need to prove negligence. The first of the three grounds is the one that I raised when trying to gain a better understanding of the Minister's reply at Second Reading. The owner is likely to be liable for damage if,the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe".Under Section 5 of that Act the liability does not apply to trespassers. Therefore, at present, the Act creates a liability only for livestock that are being grazed in the vicinity of public highways and footpaths, not on land where the only access is liable to be by trespassers.
As far as concerns the access land proposed under the Bill, there will be no trespassers other than any who perhaps contravene or have flouted the stipulations laid down in Clause 2; and, of course, that would have to be proved to their satisfaction. Therefore, all this land will carry a totally new liability for the livestock owner unless an amendment such as that which I have tabled is accepted.
The types of ordinary livestock which might unexpectedly cause damage when faced with a stranger are bulls of any age, let alone those over 10 months, stallions of any of the many breeds of horses, rams, billy goats, geese, goats and flighty heifers or any species whose maternal instincts can be aroused in the protection of their young. If the alternative is that these animals must be housed during those seasons or continuously all the year round, that will require 985 increased building accommodation and labour and therefore increased costs for the person who is keeping them.
I very much welcome Amendment No. 2. The fact that access may no longer apply to improved or semi-improved grassland gives considerable reassurance on some of my earlier worries. One person I spoke to in that context was worried about what would happen to people who tried to claim access to land on which young thoroughbreds were kept. That will no longer be such a worry. There is no doubt that some animals are easily upset and can easily cause damage.
There are still the Occupiers' Liability Acts which impose a duty of care when access amounts to trespass; and that always remains. In Committee the Minister said that 98 per cent of bulls would not be on access land. But now that there is a more generally accepted policy of leaving large numbers of male calves entire, those numbers are likely to change. I had thought that there might also be some need, when dealing with remote steadings in mountain and moorland areas, to ensure that there was in the vicinity some area of land other than the garden that is not marked as access land and could be used for excitable animals. Amendment No. 2 probably takes care of that situation and I am most grateful for it. Such animals may be perfectly peaceful with their customary handlers but can always be upset by strangers and particularly by dogs. I hope that my amendment or something like it will be found acceptable to the House. I presume that the stipulations on dairy bulls over 10 months of age, which were contained in the Wildlife and Countryside Act 1981, will continue to apply but only to fields on which there is a right of way.
The increased use by the public of the New Forest has had a strange and interesting side-effect. I am not sure whether the verderers have strict liability for the New Forest ponies. But I have a sense of responsibility, if nothing else. Over the years they have culled any animal that appeared to have an excitable temperament. One of the verderers to whom I spoke is now worried that the breed may be losing its vigour. That factor has to be considered even with some of our domesticated animals.
I should like to ask your Lordships to consider the liability that exists with animals whose main potential for unpredictability comes under the situation described in the second condition of the 1971 Act. That deals with the likelihood of damage due to characteristics of animals that are not normally to be found except at particular times or in particular circumstances. Halsbury's Laws uses as an illustration that of a bitch with her litter. It would not take very much legal argument to extend that to any animal with its young. Some Buckler cows have been traditionally kept on land which will shortly be defined as access land. With the current trend towards environmentally friendly management and grant aid, the policy being promoted means that these numbers are likely to increase.
Traditional hill breeds are recommended because of their foraging ability. Some hill breed cows can be relatively aggressive when they have young calves.
986 That can last for anything from six to eight weeks. That is even more pronounced in their reaction to dogs. The vision of a farmer being required to tether individually a whole herd of cows with their calves at foot in order to steer clear of liability when he is being urged to use cattle to graze his ground for the environmental benefits that will bring defies logic, let alone practicality. I do not know where such an owner would stand under the Bill if he tried posting warning notices.
The Bill as it stands will immensely increase the liability of the farmer or owner. The powers that be have unwittingly illustrated that. In March the Countryside Agency published a guide entitled Out in the Country. It may soon be the bible for all those enjoying responsible access. It states:Cattle particularly accompanied by calves, can be suspicious of dogs and on occasion may react aggressively to them. If this happens and you feel threatened, you should let go of your dog's lead and move quickly to safety, taking the shortest route to a suitable exit along the field boundary".That counsel of perfection overlooks the fact that most of us would be hard-pressed to outrun an irate cow to the nearest hedge, let alone to a suitable exit.
The proposed insertion in the Occupiers' Liability Act 1957 contained in Clause 13 of the Bill creates the impression that the Government's intention is that the new right of access should not impose additional new burdens on landowners and occupiers. My amendment is necessary to achieve exactly that end.
§ Lord Greaves
My Lords, it is with some regret that I find that I cannot support Amendments Nos. 6 and 8. I welcome Amendment No. 7, which represents a small concession by the Government. Perhaps I may say to the noble Baroness, Lady Carnegy, that it is a quite common practice to leave holes in drystone walls for sheep to get through. While the noble Baroness and I might find it difficult to get through such holes, smaller people can do so. Indeed, my daughter used to enjoy doing so while I had to lumber over the stile.
Amendments Nos. 6 and 8 suffer from one of the faults about which many noble Lords have complained during previous stages of the Bill. I refer to a lack of clarity and precision as to what exactly they mean. The phrase,any historical, traditional or archaeological feature",is yet another recipe for lawyers earning lots of money for working out what those words mean in relation to features on the ground.
At a previous stage I said that I would have been happy to see the removal of the word "natural" from features of landscape. That remains my position. However, no amendment to that end has been brought forward. I very much regret the fact that the Government have found themselves unable to accept that principle.
When people, whether they are hill walkers, climbers or whatever, go onto access land—whether it is moorland or mountain—they should do so at their own risk. For that reason, the general principle should be that landowners and occupiers should not incur any liability unless they are being obstructive and trying to 987 stop access or they are behaving recklessly. I regret that, throughout our discussions on the matter of liability, the Government have been unable to accept that principle. As a result, we shall encounter difficulties in certain areas.
However, I am glad that the Government have found practical ways of moving forwards in this regard. At a previous stage they accepted that owners and occupiers should not incur liability for water features. I only regret that they have not found it possible to extend that acceptance to rock features, where the position strikes me as being somewhat similar. I should like to ask the Minister what is the position in the case of rock features that are not natural. Last night I spoke to one of my noble friends who is a landowner. His land contains two quarries which may be of Roman origin but which, despite their great age, are not natural features. When he comes to reply, can the Minister tell the House what the owners or occupiers of land containing rock features which are not natural should do to absolve themselves of liability under the provisions of the Occupiers' Liability Act 1957? It would be helpful if the Minister could tell the House what actions should be taken by owners in those circumstances.
Government Amendment No. 19, which we have yet to reach, will be helpful in this respect but it does not go as far as we would like. If the Minister is able to give the House a clear understanding of their intentions as regards what owners are supposed to do, that would be extremely helpful. As I have said, although I regret that the Government have not gone as far as I would have liked on the question of owners' liability, given the vague wording on land use contained in the amendments before the House, I regret that I cannot support them either. I thank the Government at least for meeting this point half way.
§ Earl Peel
My Lords, before the noble Lord sits down, I am a little confused by his arguments. I believe that what he is saying is that the Government have not gone far enough. I would agree with that. However, he is also saying that the amendment tabled in the name of my noble friend does not go far enough because the noble Lord would have liked to see the word "natural" removed from the Bill. That would have encompassed everything and thus would have removed liability altogether. Given the noble Lord's position, why is he opposed to removing liability from historical, traditional or archaeological features?
§ Lord Greaves
My Lords, I think that I explained my position. The words "historical" and "traditional" are not clear and would provide a recipe for litigation. Although many features will be plainly historical or traditional, I can think of many others where the definition could be argued. It is my view that, once the Bill has been enacted, the more that can be achieved by agreement and sensible discussion and the less through the law courts, the better.
§ Lord Monson
My Lords, even if the noble Lord is right to say that Amendment No. 8 is somewhat 988 imprecise and could leave open the possibility of litigation, does he not agree that Amendment No. 10, tabled by the noble Duke, the Duke of Montrose, is extremely specific? Can he therefore support that amendment?
§ Lord Greaves
My Lords, I shall have to read it again before I answer that question. I must be honest and say that I have not devoted my close attention to the amendment. Perhaps my noble friend will be able to respond to it a little later.
§ 6.15 p.m.
§ Lord Soulsby of Swaffham Prior
My Lords, I rise to support my noble friend the Duke of Montrose in his amendment, in particular as regards dogs and their potential to cause annoyance to livestock and wildlife. As my noble friend pointed out, this can be a serious problem.
I do not believe that it is equitable for a landowner or occupier to be held responsible for an event that was first instigated by a dog belonging to a person walking on the land or even an animal belonging to a trespasser. The whole issue of dogs on access land was raised in Committee. The noble Lord, Lord Whitty, promised to come back with a statement on the matter. To that end, he has written to my noble friend the Duke of Montrose. I have had sight of the letter. It deals in part with the issues that have been raised, along with matters such as disease and parasites. I appreciate that this is not the time to discuss those points.
However, the Minister also stated that this might be dealt with by the relevant authorities. They will impose restrictions and develop codes of conduct. It might be appropriate now to suggest to the Minister that the issues with which we are dealing tonight should be included in those codes; namely, the irritation or annoyance of livestock by dogs. In that way, dog owners will be made aware of the problems when they are passing through areas being grazed by livestock. Owners must realise that dogs can be instruments of great annoyance to livestock and wildlife.
§ Baroness Hamwee
My Lords, because we have reached Third Reading, I shall not rehearse the debates that we have already held at some length on this matter. Mention has been made again today of the need to establish balance in the Bill. We feel that that point of balance has now been reached. At earlier stages there were many points on the matter of owners' liability which caused us concern, but we are grateful to the Government for having moved to meet those concerns both at previous stages and with the government amendments tabled today.
We felt that it was only right that the provisions in the Bill as regards owners' liability had both to add up and to be intellectually coherent. However, we were also concerned that the Bill should not tempt an owner to remove a feature, perhaps one that forms an important part of our traditional landscape. I am thinking of dry stone walls or bridges within an area of access land. My noble friend Lord Greaves covered 989 that point well and has certainly made me think about the issue again. We were also concerned about natural features, but the government amendment tabled on Report has appropriately eased that debate. Similarly, as regards the features referred to in Amendment No. 6, we believe that the provisions contained in new Section 1A to the 1957 Act, as set out in Clause 13(3), are an appropriate way to deal with them.
Government Amendment No. 7 is similar to one which we tabled at an earlier stage. We were most grateful for the assistance we received from the noble Baroness, Lady Carnegy of Lour. The Front Bench had in mind here features such as gates and stiles rather than walls. Indeed, we thought of it as the "Ronnie Corbett" rather than the "Greaves Junior" amendment. Nevertheless, the government amendment will work well.
Amendment No. 8 seems to be drafted rather too wide. Occupiers should be subject to a minimum level of liability and responsibility. Amendment No. 9 extends the issues to land or features adjacent to access land. I think that that would be inappropriate. We are dealing with access land in the Bill. For that reason, it would be wrong to extend the provisions.
As regards Amendment No. 10, I think that my noble friend Lord Greaves is a "rocks" rather than an "animals" person. My noble friends and I have not felt so far that an amendment of this kind was necessary. I wonder why, for example, the national parks authorities have not pressed for an amendment of this kind. National parks often maintain animals on land to which the public already has access. I can assure noble Lords that the ponies on Dartmoor and Exmoor are quite capable of being jolly vicious if they put their minds to it. Given that, I rather doubt whether such an amendment is necessary.
§ The Lord Bishop of Hereford
My Lord, I have some sympathy with the concerns expressed about the traditional, historical and archaeological features. I hope that the Minister will be able to reassure the House that Clause 13(3) really does cover owner liability. I am not convinced that it does. The rather subtle phrases about having regard to the fact that the owner should not be put under undue financial liability and that it is important to maintain the character of the countryside and so on, do not seem to go quite far enough in absolving owners from actual liability and responsibility for damage caused by those features. I have an open mind about the issue, but I am concerned about it.
The noble Duke has identified a problem that I had not thought of. I take the point of the noble Baroness, Lady Hamwee, that national park authorities have not raised the issue, but you do not need to have a dog with you to be quite frightened by flighty heifers, never mind about other more aggressive animals of the male kind. There is a real problem here. I hope that the Minister will be able to answer the noble Duke in a convincing way, otherwise I shall remain quite concerned about this issue.
§ Lord Whitty
My Lords, this is a fairly wide-ranging group of amendments. I shall speak first to the two 990 government amendments. Amendment No. 7, to which other noble Lords have referred, relates to "under" a gate, style or fence. As the noble Baroness, Lady Hamwee, said, we were concerned primarily with fences previously. But you learn a lot as you go through legislation such as this, and you discover that there are such things as hogg or hoggets holes, through which sheep can walk under stone walls. I had never previously heard the term "hogg" referred to as a sheep but, as I say, we learn. The amendment will provide for such a contingency and meets the anxieties which were expressed in relation to fences at the previous stage.
Turning to government Amendment No. 19, I should explain that regulations made under Clause 42 provide that the fact that land is subject to the right of access is to be disregarded in deciding whether or not the land is a "public place" for the purposes of a specified entitlement in other legislation provided for different purposes. The amendment will therefore clarify that such regulations can be made in relation to things omitted to be done as well as things done.
Amendment No. 19 will enable regulations to be made which would provide that access under the new statutory right may be disregarded in determining whether a disused mine shaft or a quarry is a statutory nuisance. I think that will clarify the position on a number of matters.
The remarks of the noble Earl, Lord Peel—and, to some extent, those of the noble Lord, Lord Greaves—tempt me into a further, quietly philosophical, debate about the question of liability and balance within the Bill. I spoke at some length on this issue at the previous stage; I do not intend to do so today. Reducing the liability of those affected by the extension of the right of access to their land—the owners and occupiers—to what would otherwise be the liability to trespass, is part of the balance of the Bill. Where even that relatively minimal liability makes them extremely vulnerable in relation to, for example, the natural features and the boundary features to which we have referred, we limit it yet further.
But I am not prepared to accept that there is no liability on the part of occupiers and owners of land, any more than I would in respect of owners and occupiers of any other property. The liability is low and is contained by omitting the most vulnerable features. By these further exclusions, I believe, as does the noble Baroness, Lady Hamwee, that we have now got the correct balance in the Bill.
Amendment No. 8 seeks to achieve the obliteration of liability in almost all circumstances. For the reasons I have stated, I cannot accept the amendment. It would seriously undermine the balance we have achieved.
Amendment No. 6 deals with the issue of historical, traditional or archaeological features. We have already dealt with this. The guidance in Clause 13(3) would require the courts to have regard to the importance of maintaining such features. This would ensure that the liability arising from those features would, in practice, be very low indeed. The courts would have to take that into account, and that would 991 involve an element of judgment by the court. It would also avoid the kind of definitional problems to which the noble Lord, Lord Greaves, referred.
I can see no reason to exclude all liability from such features, particularly as some will be fairly indistinguishable from other features of access land. Nevertheless, it is important that the courts are given the duty of taking into account the historical and traditional features as well as the question of putting an undue burden on the landowner. We have therefore covered the point—perhaps more indirectly than she would have liked—of the noble Baroness's amendment.
Perhaps I may now deal with Amendment No. 10 and the point made by the noble Duke, the Duke of Montrose. I think I now understand what he is talking about. However, the noble Duke's amendment would place users of the statutory right of access in the same position as trespassers if they were harmed by a dangerous animal. In general, the owners of animals are strictly liable—that is to say without proof of negligence—if the animal belongs to a dangerous species, or is known to be dangerous and causes an accident. As the noble Duke said, that strict liability does not apply to trespassers.
But an owner will be liable if he is negligent—for example, if he turns out a bull with known dangerous tendencies on land frequented by the public without proper warnings. The Animals Act envisages dangerous animals being kept to protect property. Given that we are introducing in the Bill a new right of access, we do not believe that it would be appropriate to remove this liability in the terms suggested by the amendment.
§ The Duke of Montrose
My Lords, animals which are dangerous or known to be dangerous will still be the liability they are at present. I am concerned about animals which fall under the other three categories, where there is a possibility of people being injured or damage being caused merely by the size of an animal or by an animal's unusual reactions during a certain season. I am talking about ordinary animals which have no general potentiality to damage but for which, under these circumstances, the owner has a liability.
§ Lord Whitty
My Lords, in such a case the court would have to decide whether it was reasonable to foresee a liability and assess whether the owner had been negligent in respect of the normally docile animal to which the noble Duke referred.
The noble Duke indicated that increased access to land is liable to increase the number of cases—I assume that is what lies behind the amendment—where such creatures would be provoked and, by stampeding and so on, would cause damage. The likelihood of that is relatively low but, were it to arise directly, the court would have to take into account whether the owner should have known that would happen and whether he had acted unreasonably in allowing those animals to be pastured.
992 I would not have thought that simply having the trespasser liability would prevent livestock from continuing to pasture on access land in normal circumstances—unless, of course, the owner knew that there were dangerous propensities in a particular animal or type of animal; otherwise, if the owner was acting reasonably in the way described by the noble Duke, he would not be found liable at court.
I have some sympathy with landowners who have concerns about injuries sustained by encounters with animals. We shall be looking to guidance from the countryside bodies to ensure that people appreciate that livestock—even docile livestock—can cause damage or injury if provoked, even if unwittingly provoked. The onus will be on walkers primarily to take sensible precautions. I would hope that greater information on this issue will follow as part of the general duties of the countryside authorities, and that a court would use its judgment in the kind of situation about which the noble Duke is concerned.
Amendment No. 9 would extend the exclusion to features adjacent to access land. I find it slightly odd that in dealing with a question of liability on access land we are now bringing in adjacent buildings. I have heard the noble Viscount, Lord Bledisloe, speak at length on this issue, both in this Chamber and outside. I understand his concern. However, the amendment would create a situation whereby a building that had not been directly affected by any right of access would change its liability. In most cases, all the landowner would have to do if a building was dangerous—as he would in relation to dangerous quarries, to reply to the noble Lord, Lord Greaves—would be to put up a notice to that effect. But under the amendment the building would be on non-access land. It would be no different, therefore, from a building anywhere in the country. The fact that someone owns a building on a busy street that is about to become busier, does not absolve that person from liability for people who might, lawfully or unlawfully, enter that building.
I see no reason why owners of land adjacent to access land should be treated any differently from any other property owner in this respect. It cannot be right that someone who happens to own a building close to access land should be treated any differently. If we think, for example, of the safety of children, we could not accept that a house on the edge of a village that abutted access land should not have the same obligations as the owner of any other property within the village. If the building was dangerous or ruined, some elementary precautions would be the responsibility of the landowner. We should end up in an absurd situation were we to accept Amendment No. 9.
I hope that I have dealt fully with these amendments. I shall move the government amendments at the appropriate time.
§ 6.30 p.m.
§ The Duke of Montrose
My Lords, perhaps I may take this matter a little further. My amendment attempts to deal with animals not belonging to a 993 dangerous species. The liability for a dangerous animal still obtains. So far as I understand the law, the fact that a livestock owner knows that cows with calves are likely to be upset gives him a strict liability, whether or not there is negligence. Because of that, anyone on access land might be able to bring a case against the owner because of the fact that the upset animals had gone for him.
§ Lord Whitty
My Lords, a court would nevertheless need to take into account whether the owner had made reasonable provision, knowing the nature of the species and the nature of the land.
§ Earl Peel
My Lords, perhaps I may ask the Minister a question on an important point. As I recall, when the Bill began its passage in the other place, the Government made a plain commitment that its provisions would not cause inconvenience or cost to owners and occupiers. However, it is clear from what the Minister has said that the Government now acknowledge that owners and occupiers will incur costs because of occupiers' liability precisely because of the access provisions in the Bill.
The Minister has made his case—he shakes his head. I know that he has gone some way down the line in dealing with the case of mines and quarries, but the occupiers' liability remains and that will bring a cost to the owner and occupier. I simply do not see how the Minister can deny that.
§ Lord Whitty
My Lords, I deny it, as I did many months ago at Second Reading, when I referred to the vast tracts of countryside which are already subject to access provisions. For example, parts of the national parks have had arrangements with landowners that they would meet liability, but although they have some 5 million visitors only one case has been brought. That is a minimal change in liability. It is also the case in relation to the Peak District national parks. There has been a minimal number of cases, and a minimal number of successful cases.
I appreciate that we operate in a litigious society. Nevertheless, all standing experience suggests that successful claims for liability on existing access land have been negligible. I have no reason to believe that that should not continue to be the case with the increase in access land provided by the Bill.
§ Lord Glentoran
My Lords, needless to say, I am disappointed with the Minister's response. However, I have some understanding of where he is coming from. During the course of debate on the Bill, the Government have given a great deal to various parts of the Opposition and they have helped, graciously and competently, to improve the Bill significantly. I am extremely grateful for that, as, I am sure, are other noble Lords.
I wonder about the Government's argument regarding liability. I do not believe that they are winning the intellectual argument. I think the Government feel that they have gone far enough and that they cannot give any more—particularly to 994 landowners and farmers. I hope that I am allowed to speak to the amendment tabled by my noble friend the Duke of Montrose. I understand the Minister to say that, under the Bill as it now stands, if a bull is liable to do harm or damage to a walker, the farmer must not put the bull on access land because it would be considered by the courts to be unreasonable. That is immediately interfering. Such a provision is very dangerous and it should not be in the Bill.
I turn, secondly, to my Amendment No. 8. The noble Lord, Lord Greaves, spoke to it at some length and asked the Minister a series of questions which went to the heart of the issue. In the past, I have taught people to climb and abseil on old and ancient quarries. I have taken parties down old and ancient copper and tin mines. It is possible to get into them; they are dangerous; people die in them and will, I dare say, continue to die in them. They certainly cause considerable problems.
Also, as a quarry owner when I was working for Redland plc, as a commercial enterprise, under the present law we were rightly forced to fence all our active quarries. There are a number of quarries—admittedly fairly small—and a number of old tin mines and the like which are not protected in any way as regards the general public. I want the Minister to tell me what the Government expect a landowner to do who has those features on his land. As I understand the Bill, the landowner retains liability for any accident that happens in those quarries, mines or whatever as a result of people having a right of access to the land.
The Government have not yet gone far enough. I am not sure that they have thought through the detail. I was grateful that the noble Baroness, Lady Hamwee, half admitted that she had not got to the core and the detail of the problem at earlier stages of the Bill. I hope that I do not misquote the noble Baroness. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Whitty moved Amendment No. 7:
Page 8, line 39, after ("over") insert (", under").
§ On Question, amendment agreed to.
Lord Glentoran moved Amendment No. 8:
Page 8, line 42, leave out from ("any") to ("is") in line 43 and insert ("feature which has grown naturally or which has been constructed or retained for the purpose of any normal use of the land").
§ The noble Lord said: My Lords, as I indicated in my previous remarks, I am not satisfied with the answer given by the Minister on the question of liability. I wish, therefore, to test the opinion of the House.
§ 6.40 p.m.
§ On Question, Whether the said amendment (No. 8) shall be agreed to?995
§ Their Lordships divided: Contents, 68; Not-Contents, 172.996
|Division No. 3|
|Allenby of Megiddo, V.||Liverpool, E.|
|Anelay of St Johns, B.||Lucas, L.|
|Arran, E.||Mackay of Ardbrecknish, L.|
|Astor of Hever, L.||Mancroft, L.|
|Attlee, E.||Marlesford, L.|
|Brabazon of Tara, L.||Molyneaux of Killead, L.|
|Brougham and Vaux, L.||Monro of Langholm, L.|
|Buscombe, B.||Monson, L.|
|Byford, B.||Montrose, D.|
|Campbell of Alloway, L.||Mowbray and Stourton, L.|
|Campbell of Croy, L.||Moynihan, L.|
|Carnegy of Lour, B.||Murton of Lindisfarne, L.|
|Chadlington, L.||Newton of Braintree, L.|
|Colwyn, L.||Noakes, B.|
|Cranborne, V.||Northbrook, L.[Teller]|
|Crickhowell, L.||Northesk, E.|
|Dixon-Smith, L.||O'Cathain, B.|
|Dundee, E.||Onslow, E.|
|Elliott of Morpeth, L.||Palmer, L.|
|Elton, L.||Park of Monmouth, B.|
|Erroll, E.||Peel, E.|
|Fraser of Carmyllie, L.||Renton, L.|
|Geddes, L.||Renton of Mount Harry, L.|
|Glentoran, L. [Teller]||Roberts of Conwy, L.|
|Hambro, L.||St John of Fawsley, L.|
|Hanham, B.||Seccombe, B.|
|Hayhoe, L.||Selborne, E.|
|Higgins, L.||Shaw of Northstead, L.|
|Hooper, B.||Skidelsky, L.|
|Howe, E.||Soulsby of Swaffham Prior, L.|
|Imbert, L.||Strathclyde, L.|
|Kingsland, L.||Vivian, L.|
|Lamont of Lerwick, L.||Waddington, L.|
|Lawson of Blaby, L.||Wilcox, B.|
|Acton, L.||Dahrendorf, L.|
|Addington, L.||David, B.|
|Ahmed, L.||Davies of Coity, L.|
|Alderdice, L.||Davies of Oldham, L.|
|Amos, B.||Dean of Thornton-le-Fylde, B.|
|Andrews, B.||Desai, L.|
|Archer of Sandwell, L.||Dholakia, L.|
|Attenborough, L.||Donoughue, L.|
|Bach, L.||Dubs, L.|
|Barker, B.||Elder, L.|
|Barnett, L.||Elis-Thomas, L.|
|Bassam of Brighton, L.||Evans of Parkside, L.|
|Beaumont of Whitley, L.||Evans of Watford, L.|
|Berkeley, L.||Ezra, L.|
|Bernstein of Craigweil, L.||Falkland, V.|
|Billingham, B.||Farrington of Ribbleton, B.|
|Blackstone, B.||Faulkner of Worcester, L.|
|Borrie, L.||Filkin, L.|
|Bradshaw, L.||Gale, B.|
|Bragg, L.||Gibson of Market Rasen, B.|
|Brennan, L.||Gilbert, L.|
|Brett, L.||Goldsmith, L.|
|Brooke of Alverthorpe, L.||Goodhart, L.|
|Burlison, L.||Gordon of Strathblane, L.|
|Carter, L.[Teller]||Gould of Potternewton, B.|
|Clarke of Hampstead, L.||Grabiner, L.|
|Clement-Jones, L.||Greaves, L.|
|Clinton-Davis, L.||Grenfell, L.|
|Cohen of Pimlico, B.||Hamwee, B.|
|Craig of Radley, L.||Hardy of Wath, L.|
|Crawley, B.||Harris of Greenwich, L.|
|Harris of Haringey, L.||Puttnam, L.|
|Harris of Richmond, B.||Ramsay of Cartvale, B.|
|Harrison, L.||Randall of St. Budeaux, L.|
|Haskel, L.||Razzall, L.|
|Haskins, L.||Rea, L.|
|Hattersley, L.||Redesdale, L.|
|Hayman, B.||Rendell of Babergh, B.|
|Hilton of Eggardon, B.||Rennard, L.|
|Hollis of Heigham, B.||Rodgers of Quarry Bank, L,|
|Hooson, L.||Rogers of Riverside, L.|
|Howells of St. Davids, B.||Roper, L.|
|Hughes of Woodside, L.||Russell, E.|
|Hunt of Chesterton, L.||Russell-Johnston, L.|
|Irvine of Lairg, L. (Lord Chancellor)||Sainsbury of Turville, L.|
|Islwyn, L.||Scott of Needham Market, B.|
|Jacobs, L.||Sharman, L.|
|Jay of Paddington, B. (Lord Privy Seal)||Sharp of Guildford, B.|
|Jenkins of Putney, L.||Shutt of Greetland, L.|
|Judd, L.||Simon, V.|
|Kennedy of The Shaws, B.||Simon of Highbury, L.|
|King of West Bromwich, L.||Smith of Clifton, L.|
|Layard, L.||Stone of Blackheath, L.|
|Lea of Crondall, L.||Symons of Vernham Dean, B.|
|Lester of Herne Hill, L.||Taylor of Blackburn, L.|
|Linklater of Butterstone, B.||Thomas of Walliswood, B.|
|Lipsey, L.||Thomson of Monifieth, L.|
|Lockwood, B.||Thornton, B.|
|Macdonald of Tradeston, L.||Tomlinson, L.|
|McIntosh of Haringey, L.||Tope, L.|
|McIntosh of Hudnall, B.||Turnberg, L.|
|MacKenzie of Culkein, L.||Turner of Camden, B.|
|Mackie of Benshie, L.||Uddin, B.|
|McNally, L.||Walker of Doncaster, L.|
|Maddock, B.||Wallace of Saltaire, L.|
|Mar and Kellie, E.||Walmsley, B.|
|Massey of Darwen, B.||Walpole, L.|
|Merlyn-Rees, L.||Warner, L.|
|Methuen, L.||Warwick of Undercliffe, B.|
|Miller of Chilthorne Domer, B.||Watson of Invergowrie, L.|
|Mitchell, L.||Watson of Richmond, L.|
|Molloy, L.||Weatherill, L.|
|Morgan, L.||Wedderburn of Charlton, L.|
|Morris of Castle Morris, L.||Whitaker, B.|
|Newby, L.||Whitty, L.|
|Nicholson of Winterborne, B.||Wigoder, L.|
|Nicol, B.||Wilkins, B.|
|Northover, B.||Williams of Crosby, B.|
|Oakeshott of Seagrove Bay, L.||Williams of Elvel, L.|
|Williams of Mostyn, L.|
|Parekh, L.||Williamson of Horton, L.|
|Peston, L.||Winston, L.|
|Phillips of Sudbury, L.||Woolmer of Leeds, L.|
|Plant of Highfield, L.||Young of Dartington, L.|
|Prys-Davies, L.||Young of Old Scone, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.50 p.m.
§ [Amendments Nos.9 and 10 not moved.]
§ Clause 18 [Wardens]:
Baroness Byford moved Amendment No. 11:
Page 12, line 5, leave out subecion (1) and insert—
("(1) Every access authority or district council shall take such steps (whether by the appointment of wardens or otherwise) as appear to it to be necessary or expedient to achieve the purpose set out in subsection (3) as respects access land in their area.").
§ The noble Baroness said: My Lords, I shall speak to Amendment No. 13 which is grouped with Amendment No. 11 after the noble Lord, Lord Williamson, has spoken to Amendment No. 13.
§ In our earlier debates the matter of wardens was raised on many occasions. The Liberal Democrat Benches have suggested that the term "warden" is not appropriate. I know that at this stage of the Bill we cannot change that term unless the Government decide to substitute "ranger" for the term "warden" when the Bill returns to the other place. I suspect that they might gain support for that from all parties.
§ We believe that the successful implementation of the Bill depends on the ability of local authorities to put in place wardens. They could be part-time as opposed to full-time wardens or they could be voluntary personnel. I believe that wardens should help to ensure that restrictions are observed. However, their purpose is also to offer general help to the public to enable them to enjoy access land. They are particularly useful at honeypot sites. I hope that I have adequately summarised the duties of wardens. I do not consider them to have a "lock-up" function, as it were. That is a dreadful use of English, for which I can only apologise. The function of the ranger or warden is to assist people as well as to ensure that restrictions in regard to access are observed.
§ I thank the Minister for meeting us again only two days ago to try to resolve the difficult problem of wardens. I would not dream of putting words into his mouth but I think he will agree that we both accept that there is a problem with regard to wardens and the provisions of the Bill. We have heard in other contexts that local authorities and bodies such as the Countryside Agency have had to stop funding certain activities due to a lack of central funds and competing demands. I have in mind particularly the situation in Wales where the Countryside Council for Wales has had to reduce its support for biodiversity action plans due to lack of funds. The Government recognised this problem and have brought forward an amendment to tackle it which we shall not debate tonight. However, as I say, the Government recognised that the problem existed and that it needed to be tackled.
§ We are also concerned that local authorities may acknowledge a need for rangers or wardens but, as they have no statutory duty to employ them, may fail to vote funds to this area. Amendments Nos. 11 and 12 simply place a legal duty on local authorities to take any steps which they believe are necessary to achieve the objective I am discussing. As the Minister has said at earlier stages of the Bill, the Government are making a sum of money available to local authorities—I describe it as a pot of money—to support I he purpose and thrust of the Bill. However, at the moment within that pot of funds no money is specifically allocated to the provision of wardens. Nor is the Minister—perhaps he will confirm this again—prepared to ring-fence the amount of money that local authorities will receive.998
We have a problem here. I moved the amendment on 7th November (at col. 1428 of Hansard). Its basic aim is as stated:
Every access authority or district council shall take such steps (whether by the appointment of wardens or otherwise) as appear to it to be necessary or expedient to achieve the purpose set out in subsection (3) as respects access land in their area".
Under the terms of the amendment authorities are obliged to take these steps. They cannot fail to take them because of a lack of funds.
§ The Minister indicated that he hoped to be able to bring forward a measure on this issue. Unfortunately that has not occurred and therefore I propose this important amendment. All of us want the Bill to work successfully but further statutory measures are needed with regard to some of its provisions. I beg to move.
§ Lord Williamson of Horton
My Lords, I support Amendment No. 11 which has been moved by the noble Baroness, Lady Byford. In doing so I speak also to Amendment No. 13 which stands in my name. The grouping follows the usual mysterious practices of the House. However, I accept that and I shall speak to the two amendments.
The amendment which stands in my name reflects to a considerable degree an amendment which was put forward at an earlier stage by the noble Viscount, Lord Bledisloe. However, it has two important differences. First, it does not make reference to by-laws. Secondly, it inserts quite deliberately after the requirement for the access authority to take steps the words "if any".
The point of Amendment No. 13 is one which has already featured in our debates this evening in relation to Amendment No. 3 in the name of the noble Earl, Lord Peel. However, the way in which I approach it in this amendment is different. The substance of the issue, however, is the same. While we have established in the Bill the right to roam and the few necessary conditions for the exercise of that right in a proper balance with the interests of owners, occupiers and the land itself, we all know that in general this right will be exercised responsibly to the benefit of the public.
However, there is genuine concern about the few cases which will probably occur where someone repeatedly and persistently does not respect the conditions, for example, keeping a dog on a lead in the vicinity of livestock and so on. The question is: what is to be done in those circumstances? Are the current sanctions sufficient? They may be in the case of criminal law sanctions, but they will not apply in all cases. There will not always be by-laws. We have just passed Clause 17 which does not lay an absolute duty on the access authorities to make by-laws. They may make them but in some cases they certainly will riot. Therefore the criminal law will not apply in all these cases and the only other sanction is the temporary banishment for 72 hours. Amendment No. 13 puts a duty on the access authority to act—it does not have to take steps but it is possible for it to do so—to prevent repetition of persistent failure to comply with the conditions of access.
999 I know that there are other possibilities in this regard such as the criminal law or injunctions. However, since I have been a Member of the House of Lords I have been much struck by the realisation that we are not a typical cross-section of the public. We in this House seem to believe that it is easy to apply to the criminal law and to take out an injunction. None of my friends will touch the criminal law if they can help it and nothing in the world will induce them to take out an injunction. Placing an obligaton on the access authority would be more effective than leaving it to an individual occupier who would probably suffer quite a lot rather than become involved in this morass. That is the purpose of the amendment.
Finally, the amendment does not create any new criminal offence. It is, therefore, quite different from the earlier proposal from the noble Earl, Lord Peel. And it does not criminalise trespass. So none of the objections to the noble Earl's amendment—I noted them carefully—arises in relation to Amendment No. 13.
§ 7 p.m.
§ Lord Judd
My Lords, when the Minister replies, I hope that he will take this final opportunity to dispel the real anxieties which exist with regard to Amendment No. 11. It is clear that, for example, on National Trust land, in national parks and so on, the absence of wardens could lead to a rapid deterioration of amenities available to the public. There is an issue here. After all our deliberations, anxiety remains about the apparent contradiction in the Bill as drafted. Clause 18 refers to the possibility that the appointment of a warden may be seen as necessary by the local authority; but it then provides that the local authority may respond to that necessity. It might be argued that if it did not respond to that necessity it would be guilty of a dereliction of responsibility. There seems to be a contradiction. In dealing with the amendment, I hope that my noble friend will be able to dispel the anxiety.
§ Baroness Miller of Chilthorne Domer
My Lords, the noble Lord, Lord Judd, puts clearly the difficulty. Anxiety has been expressed on all sides of the House on Report. Since then I considered carefully the issues surrounding the amendment and, in the light of those discussions, asked organisations for their views.
Some may believe that the Association of National Parks Authorities is exceptional because it has money dedicated to the organising of open access land. Nevertheless, its view is valid because it has the most experience of managing such land. It believes that the consensual approach that the local access forums will bring is right. The association also considers that each local access forum will have to decide on the appointment of wardens because, as we explained on Report, there are several different approaches. People may be appointed for the purpose; or agreements may be made with voluntary sector people or landowners.
The funding is the heart of the matter. If they have the funding, all responsible local authorities must decide to manage the open access land properly. We 1000 cannot legislate for incompetent or careless authorities. If we could do so, we would not have local authorities which run education or social services badly. By imposing a duty, we do not make them competent or careful. Providing sufficient funding can help those careful and competent authorities to fulfil their duties. But when budgets are difficult, those people who have the vote, over whose land access is being exercised and who are involved in the everyday management of that land will have to argue their case with the local authority. They will be the people who use the education and social services of that local authority.
I do not want to diminish the seriousness with which these Benches regard the proper management of open access land. However, we believe that at the end of the day those fine judgments on the use of resources must be left to local authorities. In a year when local authority grants have been increased somewhat, it may be easier to propose such an amendment. But should resources become tight, with similar budget cuts to those experienced by most counties over the past decade, local authorities alone will have to choose whether they put their resources into management of the countryside. That will be the choice of their voters in the area.
§ Lord Monro of Langholm
My Lords, the Liberal Party seems able to find a difficulty for every solution. From what the noble Baroness, Lady Miller, said it appears that she will not support either amendment.
Amendment No. 11, moved so well by my noble friend Lady Byford, is a mild proposal. While it gives a local authority immense discretion, it gives a push in the right direction: to set up a warden or ranger service. In almost every other organisation in a similar position—it may be the Forestry Commission, a wildlife trust or a national park—rangers, wardens or gamekeepers are present, not in numbers or in a provocative way, but to help to manage the land and ensure that people behave in a reasonable way. Even private estates are prepared to employ a ranger so that visitors can be conducted around the estate, enabling children from the country and urban areas to understand how farms and estates work in the countryside. That can be done without enormous expense to the bodies involved. If we listen to the Chancellor, this country seems to be awash with money. Therefore, money spent on improving such areas—we are keen to see them improved—would be well spent.
I hope that the Minister will support Amendment No. 11, which is so mildly worded and encouraging in its result, and Amendment No. 13. Both amendments demonstrate the spirit that we want to see invoked. It will be a pity if the noble Lord allows this opportunity to pass.
§ The Lord Bishop of Hereford
My Lords, I support Amendment No. 11. I am not convinced by the arguments of the noble Baroness, Lady Miller. Voting for wardens for access land is not analogous to wanting good schools and social services. A large 1001 number of people have a considerable interest in good schools and social services. But with regard to access land, the number of people involved will be relatively small and they will be mainly farmers and landowners. They will not be able to swing a local authority decision in favour of the issue.
I agree that the amendment is modest. I cannot understand why the Government are not prepared to say that every access authority shall take such steps—possibly by the appointment of wardens. The cost may not be great. As has been said in debate, much of the work could be done by people who carry out the work enthusiastically, efficiently and effectively but not simply at the whim of the local electorate. That is a dangerous position to leave ourselves in. I hope the Minister will recognise the need to impose some obligation on the access authority.
§ Lord Whitty
My Lords, we have already provided powers for local authorities and said that we require them to carry out their duties in respect of information. One of their powers involves the appointment of wardens. The noble Baroness, Lady Byford, said that, like me, she does not regard wardens primarily as enforcement officers, but the amendment seems to cast them in that role.
The amendment is deceptively modest, because as well as shifting from a power to a duty, it gives the impression that the access authorities would be responsible, via wardens or otherwise, for the management and enforcement of access land. We cannot expect every piece of access land to be policed by wardens.
We have said that we will provide funding. We broadly agree with the Local Government Association's estimate of the cost, including the cost of wardening. We have given the power to local authorities and placed the access regime in their hands. I have often heard the noble Lord, Lord Dixon-Smith, argue that local authorities should be able to choose how they spend their own money. I had thought that it was the prevailing wisdom in all three main parties that we should move further in that direction, not go in the opposite direction.
The amendment would inevitably lead to ring-fencing. The right reverend Prelate the Bishop of Hereford explicitly called for that. I do not accept that argument. The amendment would be damaging to general local authority finance and would be misleading about the exact responsibilities of access authorities. We expect access authorities to take their duties seriously and we hope that they will appoint significant numbers of wardens, particularly in the honeypot areas, but also in many other places. The amendment would impose too great a burden on local authorities, constrain their action too much and give the wrong impression as to their duties.
The noble Lord, Lord Williamson, appeared not to be completely satisfied with the answer given on Report by my noble friend Lord McIntosh. My noble friend said that, under the Local Government Act, authorities already have powers to pursue civil actions. 1002 The noble Lord's objection seemed to be that nobody likes going for injunctions, but we are talking not about the person in the street—or on the faun—but about local authorities being able to go for injunctions. Those powers already exist and do not need to be reiterated.
Moreover, his amendment implies, although he sought to deny it, that local authorities would need to seek to enforce all cases of trespass arising under Part I. It is not our intention to force local authorities to take it upon themselves to pursue every relatively minor case of trespass at the behest of the landowner or anyone else.
The amendment would also give wardens or the agents of authorities the power to remove somebody from access land where they had been in breach of a restriction. That power is not conferred directly by the Bill, but only as a result of landowners giving wardens such authority. Surely that is the right balance to avoid the potential for conflict between landowners and the access authority; otherwise, wardens could try to remove people from access land even though the landowner had invited them on. That is a recipe for confusion and conflict.
I therefore hope that the noble Lord recognises that the amendment would create more problems than it resolved and that they will not pursue it. I strongly oppose Amendment No. 11, despite the noble Baroness's good intentions and despite the fact that we all agree that local authorities should appoint 'wardens when appropriate and make sure that they are properly serviced.
§ 7.15 p.m.
§ Baroness Byford
My Lords, I am sure the Minister is not surprised that I am not excited by his response. I have already acknowledged his efforts in trying to resolve the situation, but, as the right reverend Prelate the Bishop of Hereford said, the amendment would not insist that a local authority had wardens. It would merely require an authority to,take such steps (whether by the appointment of wardens or otherwise) as appear to it to be necessary or expedient".The amendment does not call for ring-fencing. If the Bill is to work successfully, there should be wardens available to be put in place if they are needed. The amendment would merely give directions on that.
The Government do not appear to be worried about wardens. The Minister accepted that wardens might be necessary in some areas, but he does not think that provision should be made for them in the Bill. We simply disagree on that and I cannot do anything about it.
If some access areas run into difficulties and do not appoint wardens, who will pick up the difficulties? I assume that it will be up to the land managers, land workers and farmers to cope with something for which the Government should make provision. I do not 1003 understand the Government's argument. I am seldom frustrated by the Minister's depth of argument, but on this occasion I am. I have not suggested the provision for minor trespass. Wardens will not have just a policing role. They are helpful, supportive people who give guidance to people about many issues, including codes of conduct.
We have reached an impasse. Two days ago I expressed the hope that we would move beyond it, but I am no happier than I was before. I hope that on this occasion the Liberals will have the courage of their convictions and join us in the voting Lobby.
§ Baroness Hamwee
My Lords, before the noble Baroness sits down, we do have the courage of our convictions. They are philosophical convictions about the freedom of local government and of each local authority to take decisions for itself.
§ Baroness Byford
My Lords, I accept that. I trust that I was not suggesting that local authorities should not decide. I am a great stalwart of local authorities, having a brother who is a county councillor and a sister in law who was a district councillor for many years. The amendment would not take that discretion away from local authorities. I have tried to explain that to the noble Baroness. I beg leave to test the opinion of the House.
§ 7.18 p.m.
§ On Question, Whether the said amendment (No. 11) shall be agreed to?
§ Their Lordships divided: Contents, 55; Not-Contents, 160.1005
|Division No. 4|
|Allenby of Megiddo, V.||Molyneaux of Killead, L.|
|Anelay of St Johns, B.||Monro of Langholm, L.|
|Arran, E.||Montrose, D.|
|Astor of Hever, L.||Moynihan, L.|
|Attlee, E.||Murton of Lindisfarne, L.|
|Buscombe, B.||Newton of Braintree, L.|
|Byford, B.[Teller]||Noakes, B.|
|Campbell of Cray, L.||Northbrook, L.|
|Camegy of Lour, B.||Northesk, E. [Teller]|
|Chadlington, L.||O'Cathain, B.|
|Colwyn, L.||Onslow, E.|
|Craig of Radley, L.||Palmer, L.|
|Craigavon, V.||Park of Monmouth, B.|
|Cranborne, V.||Peel, E.|
|Dixon-Smith, L.||Renton, L.|
|Dundee, E.||Renton of Mount Harry, L.|
|Elliott of Morpeth, L.||Roberts of Conwy, L.|
|Elton, L.||Seccombe, B.|
|Glentoran, L.||Selborne, E.|
|Hanham, B.||Shaw of Northstead, L.|
|Hereford, Bp.||Soulsby of Swaflham Prior, L.|
|Hooper, B.||Strathdyde, L.|
|Kingsland, L.||Vivian, L.|
|Liverpool, E.||Waddington, L.|
|Mackay of Ardbrecknish, L.||Weatherill, L.|
|Mancroft, L.||Wilcox, B.|
|Marlesford, L.||Williamson of Horton, L.|
|Acton, L.||Islwyn, L.|
|Addington, L.||Jacobs, L.|
|Ahmed, L.||Jay of Paddington, B. (Lord Privy Seal)|
|Amos, B.||Jenkins of Putney, L.|
|Andrews, B.||Kennedy of The Shaws, B.|
|Archer of Sandwell, L.||King of West Bromwich, L.|
|Attenborough, L.||Layard, L.|
|Bach, L.||Lea of Crondall, L.|
|Barker, B.||Lester of Herne Hill, L.|
|Bassam of Brighton, L.||Lipsey, L.|
|Berkeley, L.||Lockwood, B.|
|Bernstein of Craigweil, L.||Macdonald of Tradeston, L.|
|Billingham, B.||McIntosh of Haringey, L. [Teller]|
|Borrie, L.||McIntosh of Hudnall, B.|
|Bradshaw, L.||MacKenzde of Culkein, L.|
|Brett, L.||McNally, L.|
|Brooke of Alverthorpe, L.||Maddock, B.|
|Burlison, L.||Mar and Kellie, E.|
|Carter, L [Teller]||Massey of Darwen, B.|
|Chandos, V.||Merlyn-Rees, L.|
|Clarke of Hampstead, L.||Methuen, L.|
|Clement-Jones, L.||Miller of Chilthorne Domer, B.|
|Clinton-Davis, L.||Mitchell, L.|
|Cohen of Pimlico, B.||Molloy, L.|
|Crawley, B.||Morgan, L.|
|David, B.||Morris of Castle Morris, L.|
|Davies of Coity, L.||Morris of Manchester, L.|
|Davies of Oldham, L.||Newby, L.|
|Dean of Thornton-le-Fylde, B.||Nicholson of Winterbourne, B.|
|Desai, L.||Nicol, B.|
|Dholakia, L.||Northover, B.|
|Donoughue, L.||Oakeshott of Seagrove Bay, L.|
|Dubs, L.||Parekh, L.|
|Elder, L.||Peston, L.|
|Elis-Thomas, L.||Phillips of Sudbury, L.|
|Evans of Parkside, L.||Plant of Highfield, L.|
|Evans of Watford, L.||Ponsonby of Shulbrede, L.|
|Ezra, L.||Prys-Davies, L.|
|Falconer of Thoroton, L.||Puttnam, L.|
|Falkland, V.||Ramsay of Cartvale, B.|
|Farrington of Ribbleton, B.||Randall of St. Budeaux, L.|
|Faulkner of Worcester, L.||Razzall, L.|
|Filkin, L.||Redesdale, L.|
|Gale, B.||Rendell of Babergh, B.|
|Gibson of Market Rasen, B.||Rennard, L.|
|Gilbert, L.||Rodgers of Quarry Bank, L.|
|Goldsmith, L.||Rogers of Riverside, L.|
|Goodhart, L.||Russell, E.|
|Gordon of Strathblane, L.||Russell-Johnston, L.|
|Gould of Pottemewton, B.||Sawyer, L.|
|Grabiner, L.||Scott of Needham Market, B.|
|Greaves, L.||Sharman, L.|
|Greengross, B.||Sharp of Guildford, B.|
|Grenfell, L.||Shepherd, L.|
|Hamwee, B.||Shore of Stepney, L.|
|Hardy of Wath, L.||Shutt of Greetland, L.|
|Harris of Greenwich, L.||Simon, V.|
|Harris of Haringey, L.||Smith of Clifton, L.|
|Harris of Richmond, B.||Stone of Blackheath, L.|
|Harrison, L.||Symons of Vernham Dean, B.|
|Haskel, L.||Taylor of Blackburn, L.|
|Haskins, L.||Thomas of Walliswood, B.|
|Hattersley, L.||Thomson of Monifieth, L.|
|Hayman, B.||Thornton, B.|
|Hilton of Eggardon, B.||Tomlinson, L.|
|Hollis of Heigham, B.||Tope, L.|
|Hooson, L.||Tordoff, L.|
|Howells of St. Davids, B.||Turner of Camden, B.|
|Hughes of Woodside, L.||Uddin, B.|
|Hunt of Chesterton, L.||Walker of Doncaster, L.|
|Hunt of Kings Heath, L.||Wallace of Saltaire, L.|
|Irvine of Lairg, L. (Lord Chancellor)||Walmsley, B.|
|Watson of Invergowrie, L.||Williams of Crosby, B.|
|Watson of Richmond, L.||Williams of Elvel, L.|
|Wedderburn of Charlton, L.||Williams of Mostyn, L.|
|Whitaker, B.||Woolmer of Leeds, L.|
|Whitty, L.||Young of Dartington, L.|
|Wilkins, B.||Young of Old Scone, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7.27 p.m.
§ [Amendments Nos. 12 and 13 not moved.]
§ Clause 19 [Notices indicating boundaries, etc.]:
Earl Peel moved Amendment No. 14:
Page 12, line 44, at end insert—
("() Any notice erected under subsection (1) in relation to any area of access land which has, in whole or in part, been notified under section 28(1) of the Wildlife and Countryside Act 1981 (the "1981 Act") shall—
§ The noble Earl said: My Lords, the offence created under Section 28P(6) of the Wildlife and Countryside Act 1981 provides a potentially powerful deterrent to the abuse of restrictions under Schedule 2 or Chapter II on access land on SSSIs. Anyone who intentionally or recklessly destroys or damages flora and fauna or intentionally or recklessly disturbs fauna on an SSSI is guilty of an offence and liable on summary conviction to a fine not exceeding £20,000 or, on conviction following indictment, to an unlimited fine.
§ However, for an offence to arise under Section 28P(6)(b) the person involved must know that what he destroyed, damaged or disturbed was within an SSSI. For the offence to be helpful in tackling abuses of the right of access on SSSIs—we return to this question again, I am afraid—it is essential that steps are taken to advise the public of access land which is, in whole or in part, notified as an SSSI.
§ Therefore, I ask the Government to consider an amendment such as this one or perhaps one of their own. Unless such notices draw attention to the existence of an SSSI, anyone who abuses his rights in relation to an SSSI and causes damage, destruction or disturbance could simply plead ignorance. I beg to move.
§ Baroness Farrington of Ribbleton
My Lords, under Clause 19, access authorities have powers to erect notices informing the public of the boundaries of access land and of the effect of restrictions and exclusions in force on the land. We amended Clause 19 at an earlier stage to ensure that such notices could include any other information about access land which the authority considers appropriate.
Amendment No. 14 would require access authorities, when erecting any such notice, automatically to include information on the extent of 1006 any land in the area which was designated as a site of special scientific interest, together with information about the offence created under 28P(6) of the Wildlife and Countryside Act 1981.
We believe that the Bill makes ample provision for the protection of sites which are sensitive in terms of nature conservation, allowing for closure of access or restriction of access. Where land is in need of additional protection, by-laws can be made. The effect of such closures, restrictions and by-laws is exactly the sort of information we would expect access authorities to display on notices erected under Clause 19 and, in appropriate cases, access authorities may wish to identify that certain access land falls within an SSSI and refers to the offence in Section 28P(6).
However, it is not in every case desirable to draw public attention to the status of SSSIs. There are cases, for example, where it is important to protect rare or delicate flora and fauna from the attention of thieves. In general, however, there is no objection to measures to publicise the existence of SSSIs. Indeed, new SSSIs will need to be publicised in the local press. There is already much information about them on English Nature's website.
To go further by requiring every notice erected under Clause 19 to show details of such land is simply unnecessary. A notice may be wanted just to point out a suitable means of access. It would not be desirable for all notices to contain information about everything to do with nature conservation. We, too, share the concerns raised by the noble Earl that sites of special scientific interest are fully protected. It is for that reason that we cannot accept the amendment. We believe that not only would it sometimes be unnecessary, but deeply inadvisable to display information where the access authority does not wish to draw attention in detail to the existence of the SSSI.
Access authorities can include information on a notice erected by them and may use their powers to do it under Clause 19(1)(b)(iii). In the light of that reply, I hope that the noble Earl will see fit not to press the amendment.
§ Earl Peel
My Lords, I am grateful to the noble Baroness for her reply. She made a good point. I fully understand that in certain circumstances we would not necessarily wish to draw attention to SSSIs. I believe that she went on to say that the Government would expect access authorities to draw attention to them. I hope that they do, when appropriate. I do not think they need to draw attention to the reasons for designation. However, it is important that walkers understand that they are on SSSIs and, as such, special care is needed and, indeed, that special restrictions and by-laws may apply.
The noble Baroness has taken my amendment in the spirit in which it was intended. I have received a reasonably satisfactory answer. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1007
§ 7.30 p.m.
§ Clause 20 [Codes of conduct and other information]:
Baroness Farrington of Ribbleton moved Amendment No. 15:
Page 13, line 19, at end insert (", and
(ii) with regard to public rights of way on, and nature conservation in relation to, access land.").
§ The noble Baroness said: My Lords, in moving Amendment No. 15, I shall speak also to Amendments Nos. 16, 30, 38 and 44 in this grouping. Government Amendment No. 15 responds to an amendment which was tabled by the noble Baroness, Lady Miller of Chilthorne Domer, on Report.
§ It provides that the new information duty on the countryside bodies should extend to cover rights and obligations with regard to nature conservation and public rights of way, insofar as such matters relate to access land.
§ I turn to Amendment No. 16. Clause 25 allows for directions to be made excluding or restricting access for the purpose of fire prevention by reason of any exceptional conditions of weather. We undertook on Report to look again at these provisions to see whether directions might also be made in circumstances where a high risk of fire was not directly attributable to the weather. The amendment provides that directions may also be made by reason of any exceptional change in the condition of the land. We believe that that will go a long way to address the concerns expressed on Report about the risk of fire on access land.
§ Government Amendment No. 30 makes minor drafting changes to a provision tabled by the noble Baroness, Lady Miller, on Report, which required local access forums to include representatives of other interests especially relevant to an area. Unfortunately, that amendment was omitted from the reprint of the Bill, but is set out in a corrigendum to it. However, this amendment replaces that paragraph to substantially the same effect.
§ Government Amendment No. 38 ensures that a person on access land who has with him an "engine, instrument or apparatus" used for trapping will be in breach of the restriction in paragraph 1(j) of Schedule 2. It follows a parallel amendment of the list of operations in breach of the restrictions in paragraph 1(j), so as to include trapping, in Committee when we accepted an amendment tabled by the noble Earl, Lord Peel.
§ Finally, Schedule 13 to the Wildlife & Countryside Act 1981 imposes an obligation on the Countryside Agency to make an annual report to the Secretary of State on the exercise of their functions arising under the National Parks & Access to the Countryside Act 1949, the Countryside Acts 1968 and 1981. Government Amendment No. 44 extends those obligations to require a report on the exercise of their functions under the Countryside & Rights of Way Bill. I beg to move.
§ Baroness Miller of Chilthorne Domer
My Lords, I am especially grateful to the Government for coming 1008 back with further provisions on the countryside code so that the public are clear on this matter. It is clear from all sides of the House that, from the point of view of farmers, landowners and users, this is one of the most crucial areas in terms of making the Bill work. I am extremely grateful that the Government have widened the extent of the countryside code. I am grateful, too, for the other amendments mentioned by the noble Baroness, which will have the effect of widening the extent of the local access forum.
§ Lord Greaves
My Lords, perhaps I, too, may add my support to that of my noble friend, Lady Miller of Chilthorne Domer. I welcome also Amendment No. 16, which addresses the question of fire hazards and takes account of exceptional changes in the condition of the land as well as the weather, for which some of us argued at length in Committee. We are grateful to the Government for taking that common sense view.
§ Earl Peel
My Lords, perhaps I may briefly join with the noble Lord, Lord Greaves, in thanking the Minister for Amendment No. 16, which was tabled in my name on Report. I believe that it addresses the problem we raised. Perhaps I may also thank the Minister for Amendment No. 38, which includes the word, "trapping".
§ Baroness Byford
My Lords, I, too, take the opportunity to thank the Government. It is lovely for the Government to have a run of thanks from all sides of the House. During our days of debate, which have been long and hard, exchanges from all sides of the House have highlighted practical problems. We are particularly grateful for Amendment No. 16 which recognises the condition of the land, which is important. As regards Amendment No. 44, an earlier amendment proposed that the agency look in greater detail at the requirements within the annual report. We are therefore grateful to the Government for Amendment No. 44.
§ On Question, amendment agreed to.
§ Clause 25 [Avoidance of risk of fire or of danger to the public]:
Baroness Farrington of Ribbleton moved Amendment No. 16:
Page 16, line 28, after ("weather") insert ("or any exceptional change in the condition of the land").
§ On Question, amendment agreed to.
§ Clause 26 [Nature conservation and heritage preservation]:
§ [Amendment No. 17 not moved.]
Lord Kingsland moved Amendment No. 18:
After Clause 40, insert the following new clause—