HL Deb 23 November 2000 vol 619 cc1033-66

(" .—(1) The Minister (as respects England) and the National Assembly for Wales (as respects Wales) shall, in respect of every management plan which they receive, publish, if requested to do so by the authors of the plan, a response within six months setting out—

  1. (a) the steps which the Minister or the Assembly intend to take to further the targets and aims in that management plan; and
  2. (b) the extent to which the policies of the Minister or the Assembly may conflict with that management plan, and the steps which are to be taken to resolve that conflict.

(2) In this section—

The noble Lord said: My Lords, I feel that I owe your Lordships an apology, because this is the third time I have spoken to this amendment, which was tabled in slightly different form in Committee and on Report. It is therefore the third time I must remind your Lordships of my interests in the matter, as chairman of the Sussex Downs Conservation Board and as a member of the executive committee of the Association of Areas of Outstanding Natural Beauty.

I have felt it right to come back on the issue because I am surprised that the Government have not been able to accept the amendment on previous occasions. Great importance is attached to the production of management plans by local authorities within AONBs or by statutory conservation boards, where they are established. The first point that the Countryside Agency mentioned in its literature about the new conservation boards was that it and the local authorities involved would produce a management plan. It is therefore surprising that Ministers have rejected the idea that they should have to reply to management plans.

I have watered down the amendment by adding that the Minister should reply to the management plan only if requested to do so by its authors. The reply should be made within six months, which seems a reasonable period.

That is pretty basic stuff. If the management plan is important, surely there should be a reply to it. In responding to me on Report, the noble Lord, Lord Whitty said that AONB management plans, were not part of the development plan system".—[Official Report, 16/11/00; col. 507.] By implication, he went on to say that they therefore did not need a reply. With the greatest respect, the Minister has got the wrong end of the stick and failed to understand the purpose and difficulty of management plans.

The essential point is that, although there is a formal response from the Secretary of State in the planning system, the delivery mechanism occurs through the local authorities which prepared the plans in the first place. The fundamental difference between management plans from local authorities in AONBs or conservation boards and any land use plan, such as a development plan, is that authorities which prepare the management plans do not have the power to implement the plans' objectives, particularly in so far as they concern land management. A major subject of the management plans will be land management.

Therefore, in essence, in the suggestion put forward by the Government one set of authorities will prepare plans to which great importance is attached—for example, in relation to the new conservation boards—and another organisation—namely, MAFF, a government department—will not reply to the plan but will implement national policies which very often have little regard to the needs of particular areas—in these cases, designated national parks and areas of outstanding natural beauty.

I stress that point because, since first tabling this amendment, national park officers from many parts of the country have said to me, "You are absolutely right. The difficulty for us is that we prepare a management plan in accordance with the local agencies. We consult MAFF a little about it, but once it is delivered to MAFF, we often never hear any more about it. We do not know whether MAFF agrees that it should be implemented or not".

I make a further point. All national park programmes, which are in the same category, originating from management plans are in the public domain. Those programmes operate in parallel with the MAFF programmes and deal with the same people over the same area. However, the MAFF programmes are hidden under a cloak of confidentiality. Therefore, the national park authority—this will apply to the new conservation boards—has no way of knowing whether there is, for example, duplication of funding or staff resources, whether the MAFF schemes conflict with the management plan, or whether minor topping-up of support mechanisms might enable broader objectives to be achieved, such as making the best use of scarce resources. In a response from the Minister to a published management plan, those uncertainties could be resolved without the problem of breaking confidentiality.

When we discussed this matter on Report, the Minister rightly—I thank him for this—made considerable play about the introduction of Clause 85. That clause concerns the general duty of public bodies with regard to areas of outstanding natural beauty. As a reminder to your Lordships, the clause states: In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty". Those are fine words and I was delighted to see them in the Bill. However, the problem is that no one has the duty to enforce those words. No monitoring takes place. There is no mechanism for ensuring that they are put into action or enforced.

That is why I say again to the Minister—I hope that he is in a receptive and wise and understanding mood—that the acceptance of the idea of a statement from the department as to what actions it is taking to fulfil obligations under this new Clause 85 of the Bill is the logical follow-up to the worthy words that I have just repeated. However, in cases relating to national parks, those words often are not used other than when something goes wrong, and that is known only retrospectively. I suggest that my amendment gives substance to those fine words. It will save money; it will save wasted time; and it will save duplication of effort. I beg to move.

Baroness Miller of Chilthorne Domer

My Lords, on the last occasion the Minister stated that for certain reasons the Government are reluctant to incorporate this clause into the Bill. Members of this House will be pleased that the AONBs have finally received the recognition they deserve but concerned that a two-tier system between those which have conservation boards and those which have JACBs will not be developed. Both here and in the other place Members will remain concerned about the funding for AONBs and responses to management plans. We on these Benches will follow the way in which the Government respond to issues concerning AONBs of both sorts and, in particular, those raised by the noble Lord, Lord Renton of Mount Harry. I thank the noble Lord for raising those issues.

At both earlier stages of the Bill I raised the issue of MAFF and its approach to the hill farmers' compensatory allowance. MAFF steadfastly refused to consider that one of the criteria for enhanced payments should be increased access to farms in upland areas. At that time the suggestion did not receive much support from around the House. It would have been a good mechanism for ensuring that the difficulties which hill farmers face would be met by enhanced payments under the criteria already available, if they could have been extended. MAFF has some way to go to understand the wider concerns that affect AONBs and national parks and the way that those concerns can be met, and it needs to think a little more laterally. I believe that is what the noble Lord asks—that we may discover the reasoning behind its thinking.

It would not be right to press the amendment at this stage. If the noble Lord chooses not to do so, we shall follow progress on this issue by means of Questions from these Benches.

The Earl of Selborne

My Lords, I rise to support my noble friend in his amendment. I hope that he will persuade the Minister that, after having batted this back several times, it is now time to think seriously.

I was able to attend an exhibition on AONBs in the Palace of Westminster, which I believe is still there. Display panels demonstrate how government, in their different manifestations—whether the Ministry of Agriculture or the Forestry Commission—are able to respond, and would propose in future to respond, to the management plans produced within AONBs. The great virtue of my noble friend's amendment is that it places upon the Government a commitment to explain how they will respond. At the moment there is a feeling that the Government do not always respond as readily as one might wish.

The exhibition to which I referred displayed how the Ministry and the Forestry Commission can tailor their response to the AONBs with agri-environmental or other measures. It is no good saying that there are blanket proposals which apply to all AONBs. It is precisely that which must be avoided. We must have specific responses from the department responsible. I believe that the amendment would do just that.

Having heard my noble friend revert to this issue for the third time, I hope that the Minister will recognise that there is much virtue in encouraging the Government to be proactive in their response.

10.15 p.m.

Lord Glentoran

My Lords, I too support this amendment. I was particularly interested in what the noble Baroness, Lady Miller, said about it. I fail to understand why she did not press the point further. She said all the right things, as did my noble friend. I also have taken part in various committees at the edge of government and sent in reports. Having put in a great deal of work and then submitted a report, there is nothing more frustrating than not receiving a response which is objective and in the right timescale.

Clause 90 states quite clearly that a conservation board or relevant local authority, shall send to the Secretary of State or the National Assembly for Wales a copy of every plan". What is the point of that if it is not going to be read? One assumes that if there is to be no response then it will not be read. That is a waste of people's time, energy and money. It is an excellent amendment. The fact that plans are to be sent to the relevant Secretary of State is right. It is bound to help the process in every way for the conservation boards and local authorities to receive a response from government. It would be very good discipline and a regulated communication. I am sure that it can only do good in the long run for the progress of conservation boards and AONBs.

Lord Whitty

My Lords, I hope that the noble Lord will find me wise and understanding, but I regret that I am not entirely receptive to the way he has chosen, through this amendment, to address the relationship between the AONBs and the Government. I understand a number of his anxieties slightly better tonight than previously. This amendment wrongly states the relationship between government and AONBs.

I can certainly repeat the guarantees that I have given before in response to the noble Baroness, Lady Miller, and others as regards funding and not discriminating between the different types of management of AONBs. As regards the management plans, AONBs and national park management plans are essentially locally-owned documents. They are a product of all the local partners in that area. They need to include the local arms of government. That is the prime relationship with government, working with the Countryside Agency, the FRCA or MAFF. That ongoing co-operation is the important part of the relationship between the AONBs and government.

The noble Lord specifically mentioned MAFF. It will be heavily involved also in the help that it is giving through the England rural development programme and the equivalent arrangements in Wales.

The alternative way to relating to government—no doubt the noble Lord will regard it as a complementary method—would be to have a formal process of submitting a plan to the Secretary of State in a formal response rather on the basis of regional strategic plans and so forth. That suggestion implies that the ongoing co-operation at local level stops at the point where the plan is agreed. The Secretary of State is then written to and a reply awaited, which is either a formal ritual or it may be detailed.

Management plans for AONBs and national parks would contain far too much local detail for the Secretary of State, the Minister for Agriculture, to be the appropriate source for detailed comments. In practice, the Secretary of State will ask his local agents who are already engaged in, and are party to, the preparation and implementation of the plan. To divert them to provide the national response is a waste of time and effort.

Clearly, it is important that the centre has copies of the plan and can monitor the progress in each of the AONBs and intervene should something go wrong or if there is something which should be particularly encouraged or commented on. The idea of a formal response seems to me to cut across the co-operative response at local level.

I am not sure that I can find an equivalent circumstance in which the Secretary of State is required to comment on local plans in a formal sense. The noble Lord referred to the development process. It is even optional in the development plan system for the Secretary of State to comment. It is usual for the Secretary of State to respond because he may consider that there is a need to do so in individual cases. But it is actually optional, even at that level.

The community strategies, for example, which are in other local plans and are introduced under the local government Acts 2000 are perhaps more analogous. Under that legislation there is no provision for the Secretary of State to comment because they are locally-owned documents like management plans. The Secretary of State or the Minister will, of course, be able to make specific comments if he feels it appropriate to do so. But we would not wish to write that process into legislation as a requirement.

I was perhaps a bit slow last time and must choose my words carefully now. But the scales slightly fell from my eyes when the noble Lord, and to some extent the noble Baroness, Lady Miller, focused on the contribution of MAFF. I am sure my colleagues in MAFF are doing their best to ensure a positive and constructive engagement with that department. If the problem involves the relationship with a specific government department, I can undertake to take that back and try to ensure that such difficulties as those described by the noble Lord are addressed by Ministers and officials within MAFF. I am sure that MAFF will be prepared to address that issue sympathetically and on a partnership basis.

The issue of the relationship with MAFF is not directly related to the kind of process that is to he set down in the Bill. Various forums are raising those matters more formally with MAFF; for example, the National Rural Development Forum takes place next week. However, I undertake to the noble Lord that I shall raise it with the department myself. A positive and constructive engagement with MAFF and other government agencies is an important part of making these plans work and following them through. I would prefer that to be developed than to have the sort of ritual iteration that would be required by the amendment. However, I hope that what I have said meets the noble Lord's objectives.

Lord Renton of Mount Harry

My Lords, I appreciate that the Minister is trying to be positive and constructive about this matter. I used those words "positive and constructive engagement" when I was a Minister. I hope that they sometimes forged results.

Noble Lords will be pleased to hear that I do not propose to go over the arguments again. The main problem, as the Minister said, is that this is a local product. No one locally has the funds and resources to deliver it. It goes back almost always to MAFF nationally. MAFF refers it to its regions; the regions say, "We do not have the resources. This is a problem for MAFF nationally".

However, I shall take up the Minister's suggestion. I should like to write to him and go into rather more detail on these genuine problems which exist in the present system and which we do not want to see continuing in relation to areas of outstanding natural beauty or future conservation boards. If in later years I find that the management plans are not being dealt with, I shall certainly aim to table a Question in that regard in your Lordships' House. That said, I thank my noble friend Lord Glentoran, the noble Baroness, Lady Miller, and my noble friend Lord Selborne for their support. Given the late hour, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 95 [Local access forums: supplementary]:

Lord Whitty moved Amendment No. 30: Page 68, after line 15, leave out paragraph (c) and insert— ("(c) any other interests especially relevant to the authority's area.").

On Question, amendment agreed to.

Clause 100 [Isles of Scilly]:

Lord Whitty moved Amendment No. 31: Page 71, line 4, leave out (", 130B".") and insert ("to 130D", and (b) before "146" there is inserted "137ZA(5)".").

On Question, amendment agreed to.

Clause 103 [Commencement]:

Lord Whitty moved Amendment No. 32: Page 71, line 32, after ("7") insert ("(apart from paragraphs 5A and 5B of that Schedule)").

The noble Lord said: My Lords, in moving Amendment No. 32, I shall speak also to Amendments Nos. 49, 51 and 52.

Your Lordships will be aware that these amendments arise from a debate initiated by my noble friend Lord Williams of Elvel on the vexed question of how to tackle the increasing unlawful use of motor vehicles on footpaths and bridleways. Noble Lords throughout the Chamber expressed concern that we should address the problems identified by my noble friend in his previous amendments and in the debates that he initiated.

Schedule 7 to the Bill makes various changes to Section 34 of the Road Traffic Act, under which it is an offence to drive on a footpath, a bridleway or a restricted byway. The new Section 32(2) creates a presumption that, where a way is shown on a definitive map as a footpath, bridleway or restricted byway, it should be treated as such unless evidence is produced to the contrary.

During the Report stage, we agreed to a further government amendment increasing the burden of proof on the defence to show evidence of vehicular rights on the balance of probabilities, rather than the lesser burden of proof which had previously existed. The agreement of the House was conditional on my undertaking to see whether I could go further to meet the concerns expressed by my noble friend Lord Williams of Elvel. I believe that we have done so but in a way different from his amendments. The problem about definitive maps is that they are not definitive because they contain some serious errors. For example, on the latest definitive map a section of the A40 in Herefordshire is marked as a footpath. Therefore, there are problems with using it as prima facie evidence.

Nevertheless, we have thought further. Amendment No. 32 is a paving amendment to Amendment No. 52, which would make it a offence in certain circumstances to drive on a way shown as a footpath, bridleway or restricted byway whether or not that highway carried full public vehicular rights of way. It would do so by inserting a new Section 34A into the Road Traffic Act. That would require a defendant, in addition to proving the existence of full vehicular rights of way, to show that it was reasonably necessary to drive the vehicle to gain access to land in which he has an interest or to which he is a visitor but not a trespasser, or that it was reasonably necessary for him to do so in the conduct of a his business; for example, travelling in his car as a garage mechanic to mend a vehicle.

That would mean that people who were travelling for access to premises would be distinguished from motorcyclists tearing across the countryside, or 4×4 drivers going as far as they could along a footpath for a picnic. We believe that we must protect the position of people seeking access to premises, not only owners but others with lawful access. We also recognise that this is an extremely complex area and we have all tried tackling the problem in different ways.

We are not entirely sure that we have fully tackled it, which is why we have retained an ability to cover other categories of people who might reasonably need to drive on the way which is shown as a footpath, bridleway or restricted byway. That is why we have included in Amendment No. 52 the provision for the Secretary of State to make regulations prescribing other circumstances in which the defence, under subsection (2), would be available to such a person. Amendments would also be made to Section 195 of the 1988 Act to provide that regulations were to be made by statutory instrument and would be subject to the affirmative procedure.

Amendment No. 49 is consequential on Amendment No. 52. I beg to move.

Lord Williams of Elvel

My Lords, as my noble friend pointed out, I have pursued the issue during our debates in this House. I am grateful to him and to those who have worked behind the scenes for ensuring that we have reached a satisfactory solution. I believe that we have. As my noble friend said, it is not entirely perfect, but nothing is in this world. We must go along with the proposal and therefore I shall not move my Amendments Nos. 48 and 50.

I have only one brief question to ask my noble friend, who I believe has done very well in respect of this matter. Will he indicate when the provisions will commence, because the amendment indicates a later date? Having asked that niggling question, I am grateful to my noble friend, who has been most helpful.

10.30 p.m.

Lord Williamson of Horton

My Lords, as my name is also on Amendments Nos. 48 and 50, I should like to join with the noble Lord, Lord Williams of Elvel, in thanking the Government for these amendments. I would recall that we had one amendment already included in the Bill. That was already an improvement, with the words "unless the contrary is proved" as a correction to the Road Traffic Act 1988. That was a step forward. Some of us wanted to go a little further in the direction of making the definitive map conclusive. However, I think the Government have responded very satisfactorily indeed to the request that we put forward, and I am happy to welcome these amendments.

Baroness Scott of Needham Market

My Lords, one of the fascinating parts of our debates during this process has been to see how, from the rather controversial nature of Part I, we moved into quite a large degree of consensus on certain parts of Part II. The issue of vehicular use of rights of way has worried many of your Lordships. There were two distinct, but related, issues. One is the present issue, the so-called Grimsell Lane issue—and I know that the local authority officers from Derbyshire who first raised it are rather thrilled at the notoriety that Grimsell Lane has now achieved as a result of their campaign. The other issue related to the way in which vehicular rights come on to the definitive map, because people can prove that in times gone by the way was used by horse and cart. I am rather sorry that the noble Baroness, Lady Byford, has not brought back her amendment on the subject, because there is more to do here and I suspect that long after this Bill has been passed we shall continue to debate the subject of vehicles on public rights of way.

Returning to the present issue, I am very pleased at the way in which the House has worked together and the Minister has pulled strings, almost within the last few hours, to find a way forward with which we can all agree. From these Benches we would like to extend our full support to him, together with our thanks to the noble Lord, Lord Williams of Elvel, for going a long way to resolve a rather thorny issue, particularly for the people of Grimsell Lane in Derbyshire.

Baroness Byford

My Lords, I rise very briefly to echo the words of other noble Lords. The noble Baroness, Lady Scott, asked why I had not brought back my amendment. Actually, I thought I would not make any further advance on that. All of us in the Chamber realise that there is a real ground issue needing to be addressed and I hope that at some future stage the Government will look at this thorny issue. I too should like to add my thanks to the noble Lords, Lord Williams of Elvel and Lord Williamson of Horton. We are grateful to the noble Lord the Minister for coming back with an amendment which means that the amendments submitted by those noble Lords will not be moved. It reflects the House at its best when there is a problem and we can come together to overcome it. We are happy to support this amendment.

Lord Whitty

My Lords, I too give my thanks particularly to my noble friend Lord Williams, who was the driving force behind this. Several of your Lordships, including the noble Baroness, Lady Byford, have had long discussions on this matter over the past few weeks. I am told that we finally managed to submit this amendment at 4.55 yesterday, with a reasonable degree of consensus behind it. I am very thankful to everybody concerned in that process.

To answer my noble friend's question, Amendment No. 32 would require new changes to Schedule 7, perhaps to be brought in by commencement orders to be made by the Secretary of State. That means we would need a scrutiny process for the regulations. Clearly, I could not possibly pre-empt Parliament's consideration of those regulations, but our intention would be to make them as soon as possible. The remainder of Schedule 7 comes into effect two months after enactment of the Bill, as provided for in Clause 103.

On Question, amendment agreed to.

Baroness Miller of Chilthorne Domer moved Amendment No. 33: Page 71, line 35, at end insert (", and section 98").

The noble Baroness said: My Lords, this small amendment addresses what I believe to be an oversight. The Government kindly tabled an amendment to deal with a concern which we raised initially about the registration of town and village greens. The point of the amendment was to prevent a loophole which would stop town and village greens being registered, thereby allowing them to be regarded in some cases as development land. This amendment simply seeks to ensure that the provisions of this clause and many others can be implemented within two months of the Act coming into force.

We understand from the Minister's reply that there is good reason why paragraph (b) of subsection (1A) and subsection (1B) cannot come into effect within two months. However, we believe that subsection (1A), which relates to the use of that land, can begin within two months. I ask the Government to accept our amendment. I beg to move.

Lord Whitty

My Lords, this amendment provides that the revised definitions of town and village greens should come into effect two months after the date of Royal Assent. As far as concerns the definitions, we are happy to accept the amendment. I was asked by the noble Baroness during the previous stage when the Government expected to lay the subsequent regulations. We cannot give a cast iron guarantee as to that, but we expect to do that as soon as we can. However, I am very happy to accept the amendment and the definitions within it.

On Question, amendment agreed to.

[Amendment No. 34 not moved.]

Schedule 1[Excepted land for purposes of Part I]:

Lord Whitty moved Amendment No. 35: Page 73, line 21, at end insert— ("9A. Land within 20 metres of a building which is used for housing livestock, not being a temporary or moveable structure.").

On Question, amendment agreed to.

[Amendment No. 36 not moved.]

Lord Whitty moved Amendment No. 37: Page 74, line 17, at end insert— ("14A. The land which is excepted land by virtue of paragraph 9A does not include—

  1. (a) any means of access, as defined by section 34, or
  2. (b) any way leading to such a means of access,
if the means of access is necessary for giving the public reasonable access to access land.").

On Question, amendment agreed to.

Schedule 2 [Restrictions to be observed by persons exercising right of access]:

Lord Whitty moved Amendment No. 38: Page 74, line 40, after ("fishing,") insert ("trapping,").

On Question, amendment agreed to.

Lord Whitty moved Amendment No. 39: Page 75, line 24, after ("a") insert ("short").

The noble Lord said: My Lords, in moving Amendment No. 39 I should like to speak also to Amendments Nos. 40 to 42. The amendments provide that in the vicinity of livestock and on all access land between the 1st March and 31st July dogs should be kept on fixed length leads of no more than 2 metres. I have already expressed reservations as to whether this provision is necessary, particularly in the light of the extensive provisions that we have made for the restriction of dogs more generally. Nevertheless, I understand the concerns on this issue expressed on all sides of the House and in the countryside. In the light of the commitment that I gave at the previous stage, I believe that it is sensible to make this matter clear on the face of the Bill. I beg to move.

Lord Hardy of Wath

My Lords, I rise to speak to the amendment in my name in this group. I tabled this amendment at Report stage in a gesture of compromise so that the Government could demonstrate the real strides taken by the Kennel Club and other organisations to promote proper and responsible dog ownership. My noble friend in response felt that the Bill inherently provided what I sought. However, when I looked at it subsequently I believed that that presumption was not valid. In any case, the important point is what is in a Bill rather than what may be thought to be in it. However, I shall not press the matter because I think eventually there will be litigation. I regret that there will be irritation among responsible dog owners, who probably would prefer the provision which is in the royal parks legislation, that a dog shall be on a lead or under control. It is not a good idea for government to meddle in issues like the length of dog leads.

As a dog owner, I do not like extended dog leads. Some people think they are useful for training. I have always managed to train dogs without using an extended lead. But there are some people for whom the extended lead is viable. Recently, I saw a badly disabled lady I have known for a long time. She has one little dog—her companion—which is a priceless asset to her. She goes out. She cannot walk far. But her little dog gets a fair amount of exercise on an extended lead. People like that will not be able to enjoy giving their dogs exercise in the fresh air.

I regret this provision. It will be harsh. It may not affect many people. It is not in the best interests of the Government to be seen to be adversely affecting disabled people's quality of life. That aspect of the amendments is quite unsatisfactory.

Baroness Miller of Chilthorne Domer

My Lords, we welcome further control on dogs because it has been one of the worries raised by farmers. The issue was outwith the scope of the Bill, but, as discussions went on, it became clear that dog licences and fitting dogs with microchips are something that the Government may want to consider at some point in their legislative programme. The provision would have answered many more of the concerns raised by noble Lords in our debates on the subject of dogs. The Bill is now considerably strengthened in this area. I am grateful for that.

Baroness Byford

My Lords, I rise briefly to thank the Government for tabling these amendments. As noble Lords will know, this has been one of the most difficult areas in the Bill. I hear what the noble Lord, Lord Hardy, says. It is always a difficult matter, but, wherever a rule is made, someone will always be slightly disadvantaged. Perhaps they will be on land that will overcome the problem. I have tabled an amendment that may overcome the problem that the noble Lord has raised with these particular amendments.

Lord Whitty

My Lords, perhaps I may comment on the amendment of my noble friend Lord Hardy. As regards the issue of short against extended leads, it is clear from his comments that I cannot please everyone.

We are talking about a new right which will not restrict anyone who has been taking his dog on walks with an extended lead in areas where he has always done so. It meets a concern that some noble Lords had about the ability of a dog on an extended lead to disturb wildlife when quite a distance away from its owner, even though, strictly speaking, it is on the end of a lead. That is why we put in that short leads provision.

My noble friend's Amendment No. 40 would allow people to take dogs on to access land without a lead during the restricted period with the permission of the owner or occupier of the land. I understand what my noble friend seeks to do. I have tried to explain why that is not necessary. If one allows a dog off its lead during the restricted period it is clearly a breach of the restriction and could result in the loss of the right of access. Therefore, the landowner could ask the person to leave the land. But where a landowner is content for a person to walk with a dog without a lead during that period, then the landowner will clearly by definition not be requesting that person to leave. Therefore, the walker and dog will be free to continue their walk, just as they do at present because they have the landowner's permission or connivance in doing so.

I do not think it is necessary to spell that out in the provisions of the Bill because, either formally or informally, the Bill already enables landowners to permit walkers to allow their dogs off the lead. Therefore, I do not think the amendment is necessary.

On Question, amendment agreed to.

[Amendment No. 40 not moved.]

10.45 p.m.

Lord Whitty moved Amendments Nos. 41 and 42: Page 75, line 26, after ("a") insert ("short"). Page 75, line 27, at end insert— ("5A. In paragraphs 4 and 5, "short lead" means a lead of fixed length and of not more than two metres.").

On Question, amendments agreed to.

Baroness Buford moved Amendment No. 43: Page 75, line 27, at end insert— (" .—(1) Save as hereinafter provided a person is not entitled to enter on access land at night with a dog or to be on access land at night with a dog unless prevented from leaving it by unforeseen circumstances. (2) Sub-paragraph (1) above does not apply—

  1. (a) where the land has been designated by the appropriate countryside body as suitable for access at night with dogs; and any such designation may impose such conditions or limitations as appear to be appropriate; or
  2. (b) to dogs which are on the land for some necessary or useful purposes, such as search or rescue.
(3) In this paragraph, "night" means the period from one hour after sunset to one hour before sunrise.").

The noble Baroness said: My Lords, with this amendment we return to the issue of dogs being exercised on access land at night. Access land is different from footpaths. As noble Lords are aware, the right of people to take their dog for a walk on a right of way would not be altered by my amendment. We have all been subject to lobbying. The issue that has concerned the widest range of interests is that of uncontrolled dogs on open land. I do not look at the noble Lord, Lord Hardy of Wath, when I say that, because his dogs are under control.

I have previously spoken about the safety of dogs and the safety of people who own those dogs. I have spoken also of the safety of wildlife and the problem of dogs that are out of control. If a dog runs free at night, how will it be retrieved? How will people know where their dog is? It is dark on the land. The grass is sometimes fairly long or the land is covered in bracken and heather. Unless the dog is white, it may well be invisible, as my dog often is. The owners of lost dogs tend to become upset. They do things which otherwise they would wisely not do and they may then put themselves at risk. That may lead to the rescue services being involved to get both dog and owner back to safety.

A large part of the Bill is devoted to the protection of wildlife. At an earlier stage no less a speaker than the noble Baroness, Lady Miller, stated: Constant disturbance by dogs is more a killer of wildlife than being hunted".—[Official Report, 26/6/00: col. 643.] I would add that disturbance at night is more of a killer than disturbance during the day. There is a great difference between the two.

The groups which have lobbied me include English Nature, the RSPB, the Lakes national park authority, the Moorland Association, the CLA, the NFU, the Countryside Alliance and ordinary farmers who have to cope. In earlier debates the noble Lord, Lord Northbourne, raised the whole issue of sheep. Individual people are worried as well.

My amendment attempts to reflect the concerns expressed during our previous debates. It accepts that unforeseen circumstances may lead to a dog being held on access land after the hours suggested in the amendment. That is common sense. Sub-paragraph (2)(a) includes land which could be, designated by the appropriate countryside body as suitable for access at night with dogs; and any such designation may impose such conditions or limitations as appear to be appropriate". That may solve the problem raised by the noble Lord, Lord Hardy. It may also satisfy the noble Lord, Lord Whitty, who said that on a dark night at four o'clock he would not be able to take his dog out for a walk. I hope that the Minister does not dismiss the amendment out of hand because in it I have tried to address the real problems mentioned by noble Lords during our debates.

Sub-paragraph (2)(b) recognises that some dogs may go on to land for, some necessary or useful purposes, such as search or rescue". Again, the amendment deals with a period from one hour after sunset to one hour before sunrise. The hour is late, so I shall not go into greater detail on this matter, except to recommend the amendment to the House. I beg to move.

Earl Peel

My Lords, I rise briefly to support my noble friend in this amendment. I acknowledge the fact that we have lost the argument on night-time access, but that does not preclude us from considering dogs as a separate issue.

I remember well that, before we embarked on the Bill in this House, I organised a meeting for certain interest groups. Among those who attended was the Moorland Gamekeepers Association, represented by its chairman, Lindsey Waddell. I recall him saying that one of his greatest concerns would be night-time access with dogs. It would open up a whole range of new difficulties for farmers and gamekeepers; namely, those who are responsible for a great deal of the land covered by access agreements. It is clear that we shall see difficulties with poaching and disturbance of livestock, problems which have been identified on innumerable occasions by noble Lords during the course of the Bill.

This amendment is well constructed because, as my noble friend pointed out, although it deals with all the permutations, it does allow for the control of dogs in areas where they could create the greatest difficulties. I hope that the Minister will look carefully at this proposal. If he does not, this will become yet another burden to be imposed on those who are responsible for managing the land. Quite frankly, they will not be in a position to impose the controls they deserve in order properly to carry out their duties.

The Duke of Montrose

My Lords, I, too, rise to support my noble friend. Noble Lords will have heard me going on about problems with dogs at night; indeed, they may have heard enough already. One of my main worries concerns the question of disturbance of wildlife.

A problem which the Minister keeps drawing to our attention is that we are passing legislation that will cover a vast array of different forms of countryside—mountain, moorland, heath, down and commons. One element of the amendment that strongly recommends itself to me is the fact that it allows the access authorities to permit people to exercise their dogs at night on commons. On Report, the Minister mentioned how difficult it would be to exercise one's dog within a 20-metre curtilage of one's house. However, most people who exercise their dogs at night do so along roads or other rights of way. Those options would still be in place for them. Commons would also be included and, indeed, any other areas that someone wanted to designate. I wish to support the amendment.

Lord Monro of Langholm

My Lords, I should like to add a word or two of support for the amendment moved by my noble friend. Time and again we have won the argument and lost the vote on the issue of access at night. However, when it comes to access at night with dogs running loose, it is certainly time for the Government to think again and to appreciate that this amendment is both simple and reasonable.

The important point to make here concerns habitats and the wildlife occupying them. Perhaps one can control a dog kept on a short lead, but if it is roaming wild, heavenknows what will happen to ground nesting birds and wildfowl, in particular those on flight ponds who will be damaged if they are disturbed at night. The amendment is reasonable and offers opportunities for sheepdogs to be out, if that is required, as well as rescue dogs. It seeks only to exclude dogs running wild and causing a great deal of harm to wildlife. Why the Minister prefers to put human beings before wildlife in terms of night access, I simply cannot understand. We should think much more seriously of the damage that will be done to wildlife. For that reason, we should all support this amendment.

Lord Hardy of Wath

My Lords, I see much merit in this amendment.

Lord Mancroft

My Lords, I support the amendment. One of the Government's arguments in various parts of the Bill has been that we already have access in much of the countryside and that does not seem to be causing any trouble; and that if we have more access, it will not cause any more trouble.

But we do have trouble with dogs. They cause an enormous amount of problems in the countryside already—chasing livestock and the wildlife to which my noble friends have referred. Dogs are a real problem for farmers—and dogs get out of control very much quicker at night. As soon as they are out of sight—which is rather quicker in the dark—they go through a fence or go 50 yards and get among sheep. They already do far too much damage to sheep. Livestock farmers will tell you that the most damage of all is caused by dogs getting among sheep. Dogs are much more difficult to control at night. They get into gamebirds, they get into sheep, they get into anything.

By allowing this, we would not be creating a new problem but encouraging and aggravating a current problem and allowing it to get worse. Even though it is the eleventh-hour in these proceedings, it would be very helpful if the Government were to recognise the extent of this problem. The Ministry of Agriculture has recognised the problem and has referred to it frequently. This is something we could do to prevent an existing problem getting worse.

Lord Whitty

My Lords, we need to have a sense of proportion about this. At times, slightly against my better judgment, I have conceded in good faith a large number of restrictions on the use of dogs. We have talked about a complete ban of dogs on grouse moors; we have said that dogs should be on a lead in the vicinity of livestock, and we have just passed an amendment which provides that it should be a short lead. So we have covered the issue of dogs worrying sheep, to which the noble Lord referred. We have also said that on all access land dogs should be on two-metre short leads between March and July. In those circumstances, those restrictions apply at night as they do during the day. We do not need another blanket ban which is likely to alienate a large number of dog owners.

I know that the noble Baroness thinks that she has built into the amendment some flexibility—which helps my case because her noble friend Lord Roberts was going to prevent me from going out of my back gate without telephoning the access authority—but the noble Baroness now seeks to prevent me going out of my back gate with my dog without obtaining extra certification from the Countryside Agency.

When one is dealing with common land, downland and many other areas which are close to habitations where people own dogs, it would be a fairly absurd restriction if at half-past four on Saturday people could not take their dog out for a walk. That is the implication of the amendment, albeit a small amount of flexibility is built into it. It is the kind of flexibility to which noble Lords opposite have objected in all other terms. They said that the Countryside Agency could not operate such a scheme when we were talking about flexibility in restriction regimes.

We have recognised the serious problems that there are with dogs in certain areas and at certain times. This amendment goes too far. I hope that the noble Baroness will not pursue it.

Baroness Byford

My Lords, I knew I was winning the argument when the noble Lord, Lord Whitty, started knocking the Dispatch Box. He may be slightly irritated by not being able to win the argument, but I have to say to him—and I have enjoyed debating these issues with him throughout—that there are many people out there who will not find it a joke that dogs will be running loose and wild at night. I am pleased that the Government Chief Whip is in his place. He was originally a farmer by profession and will well understand some of the problems which occur on land.

I am sorry that the Minister does not take this issue more seriously. It is a real problem. If the noble Lord, Lord Northbourne, were here, he would be jumping to his feet and joining the debate. I am very unhappy that the Government do not take this problem seriously. I beg leave to test the opinion of the House.

11 p.m.

On Question, Whether the said amendment (No. 43) shall be agreed to?

Their Lordships divided: Contents, 22; Not-Contents, 88.

Division No. 6
CONTENTS
Arran, E. Marlesford, L.
Blatch, B. Monro of Langholm, L.
Byford, B. Monson, L.
Dixon-Smith, L. Montrose, D.
Dundee, E. Northesk, E. [Teller]
Glentoran, L. O'Cathain, B.
Hanham, B. Peel, E.
Kingsland, L. Renton of Mount Harry, L.
Luke, L.[Teller] Selborne, E.
McColl of 'Dulwich, L. Walpole, L.
Mancroft, L. Williamson of Horton, L.
NOT-CONTENTS
Acton, L. Archer of Sandwell, L.
Ahmed, L. Attenborough, L.
Amos, B. Bach, L.
Andrews, B. Bassam of Brighton, L.
Berkeley, L. Irvine of Lairg, L. (Lord Chancellor)
Bernstein of Craigweil, L.
Billingham, B. Jay of Paddington, B. (Lord Privy Seal)
Blackstone, B.
Borrie, L. Judd, L.
Brett, L. Lea of Crondall, L.
Brooke of Alverthorpe, L. Lipsey, L.
Burlison, L. Lockwood, B.
Carter, L. [Teller] Macdonald of Tradeston, L.
Clarke of Hampstead, L. McIntosh of Haringey, L. [Teller]
Cohen of Pimlico, B. McIntosh of Hudnall, B.
Mackenzie of Culkein, L.
Crawley, B. Massey of Darwen, B.
Davies of Coity, L. Miller of Chilthorne Domer, B.
Davies of Oldham, L. Mitchell, L.
Desai, L. Morris of Castle Morris, L.
Donoughue, L. Nicholson of Winterburnoe, B.
Dubs, L. Plant of Highfield, L.
Elder, L. Ponsonby of Shulbrede, L.
Evans of Parkside, L. Puttnam, L.
Evans of Watford, L. Ramsay of Cartvale, B.
Falconer of Thoroton, L. Rendell of Babergh, B.
Sainsbury of Turville, L.
Farrington of Ribbleton, B. Sawyer, L.
Faulkner of Worcester, L. Scott of Needham Market, B.
Filkin, L. Shutt of Greetland, L.
Gale, B. Simon, V.
Goldsmith, L. Stone of Blackheath, L.
Gordon of Strathblane, L. Taylor of Blackburn, L.
Gould of Potternewton, B. Thornton, B.
Grabiner, L. Tomlinson, L.
Greaves. L. Turner of Camden, B.
Grenfell, L. Warner, L.
Hamwee, B. Warwick of Undercliffe, B.
Harris of Haringey, L. Watson of Invergowrie, L.
Harrison, L. Wedderburn of Charlton, L.
Haskel, L. Whitaker, B.
Hayman, B. Whitty, L.
Hilton of Eggardon, B. Williams of Elvel, L.
Howells of St.Davids, B. Williams of Mostyn, L.
Hughes of Woodside, L. Woolmer of Leeds, L.
Hunt of Chesterton, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

11.9 p.m.

Schedule 4 [Minor and consequential amendments relating to Part I]:

Baroness Farrington of Ribbleton moved Amendment No. 44: Page 78, line 26, at end insert—

    cc1050-1
  1. Wildlife and Countryside Act 1981 (c. 69) 466 words
    2. cc1051-66
  2. Exceptions to presumption in section 34(2). 7,608 words, 1 division