HL Deb 03 October 2000 vol 616 cc1497-504

(" . The Secretary of State shall make regulations to ensure that where it appears that—

  1. (a) any person having any interest in access land has suffered loss or damage by reason of the act or omission of a person exercising, or purporting to exercise, the right conferred by section 2(1) in respect of that land; and
  2. (b) the person suffering such loss or damage would have a legal right to recover that loss or damage; but
  3. (c) it is not practicable and reasonable for that person to enforce or seek to enforce that legal right, whether because the person committing the act or omission cannot be identified or served with proceedings or because there is no reasonable prospect of receiving payment of any judgment or otherwise,
compensation shall be payable in respect of that loss or damage.").

The noble Earl said: The noble Viscount, Lord Bledisloe, made it clear that he would not be able to remain in the Chamber until the close of our debates. He asked me whether I would move this amendment on his behalf. I do not propose to say anything about it because I feel that it is reasonably self-explanatory. It asks about the recourse available to an owner against someone who exercises their new access rights and then causes him a loss. It is an important question and I shall he extremely interested to hear what the Minister has to say. I beg to move.

Lord Whitty

I suspect that the noble Lord knows what I am likely to say on this because we covered the issue at Second Reading. We strongly resist clauses that provide for compensation to be paid to landowners, both for any additional expenses or any losses incurred as a result of the new right.

We start from the position that we have deliberately constructed the Bill to minimise the impact on landowners. We cannot, of course, say that no landowner will ever be subject to any loss, however small, but the reports from our consultants, which I quoted at Second Reading and to which I referred in relation to our discussions on liability, confirm that only a very few landowners are likely to be significantly affected. The framework that the Bill puts in place is designed to allow even for these effects to be either removed or minimised.

With all the amendments that we have accepted, which have gone even further than we intended at Second Reading, we are reducing the impact on landowners and their costs still further. With the funds we are making available to ensure that there is proper management, proper operation and proper information available to the public and to landowners on the operation of the new rights, we are convinced that there will not be additional costs to the vast majority of landowners. For some landowners, the new rights will bring benefits of which they can take economic advantage.

As to the first question of compensation for additional expenses, the Bill does not impose any obligation whatever on landowners to provide facilities for those using the access rights. Landowners do not have to contribute towards the cost of facilities such as gates, bridges, stiles and so on where local access authorities consider they should be provided. So there is no reason why any landowner should be put to additional expense.

As to the second issue of increases in liability, that is covered by Amendment No. 302, which was originally grouped with this amendment. We have dealt with liability pretty fully in the debate. Liability, such as it arises, is subject to all the limitations we have been discussing and would be only the equivalent of liability towards trespassers. Indeed, many landowners—that is, all those who de facto allow access to their land—may benefit from a lower level of liability than they do now. Therefore there is no significant additional cost which might be reflected through insurance premiums. Again on the basis of our earlier inquiries they are unlikely to be significantly raised.

We do not therefore think that there are grounds for compensation and we would resist any clauses such as the one standing in the name of the noble Viscount, Lord Bledisloe, to which the noble Earl has spoken. The Government's view remains strongly that this should not be and need not be a feature of the Bill.

Baroness Byford

Before the noble Lord sits down, perhaps I may clarify three points. First, he said very clearly that landowners will gain economic benefits and advantages through having access across their land. What benefits and advantages will they gain and how will they gain them? I do not understand that point.

Secondly, the Minister referred to landowners. As he knows, in some of these areas there are tenant farmers as well. It is important that we consider them as well as the landowners. Perhaps the Minister can clarify that issue.

Thirdly, he added that some may experience a lower liability. I do not follow that either. Perhaps the noble Lord can clarify that point, too.

Lord Whitty

In relation to benefits, some landowners will be able to benefit if a larger number of people visit their land and their neighbour's land by getting money out of them through other means. That is one aspect. The other aspect I referred to earlier: where the access authority considers that access needs to be improved, it may well be to the benefit of the landowner as well as to walkers if a new stile is installed or a gate is repaired and so on. These are not huge additional benefits but they will apply in some cases. It is certainly not the case that all landowners will receive a disbenefit. My argument is that very few will; and there are a few who might actually gain a benefit.

Likewise, in relation to lower liability, as I thought I made clear, we are talking about those owners who, de facto or by specific agreement, already allow some degree of access to their land. They owe full liability to those people who come on to their land now; whereas under these provisions, if their land is designated as access land, they will owe only the liability due to a trespasser. That is why I say that there may be a lower liability in a number of cases.

So far as concerns tenants, clearly it would be wrong for me to do as the legislative jargon does and subsume tenants in the terms of owners. In some cases they will be in a slightly different situation. But in so far as one is talking about a tenant farmer who has full control of his own land, the same considerations will apply as would apply to a direct owner. Therefore, most of the arguments that I have put will apply to tenant farmers as well.

Earl Peel

The Minister is absolutely right. He gave the answer that I should have expected. However, among other points that he made in responding to this amendment, he said that only a few landowners would be significantly affected. He then tried to defuse that a little, but the fact that he said it sounds warning bells. I have no doubt that the noble Viscount, Lord Bledisloe, with his legal background, will look extremely carefully at what the Minister has said. I shall also be interested to know what my noble friend Lord Brittan has to say about this in view of his comments in Committee last week. The Minister's words on the matter will need to be examined closely.

Lord Jopling

I was pleased to hear my noble friend Lord Peel refer in his final remarks to the noble Lord, Lord Brittan. I thought that the remarks made by the noble Lord, Lord Brittan, a week ago today, on the first day of the Committee stage, were powerful indeed. I have just looked up his remarks. He said: I suggest that there is a powerful case that the grant of a right to roam without legal compensation would be held to be in breach of the European Convention on Human Rights which is about to become part of the law of this country".—[Official Report. 27/9/00: col. 797.] In summing up, the noble Lord, Lord Whitty, said at col. 812: I do not want to respond to that matter now because when we discuss the clauses which concern liability and compensation I am sure that it will be debated at length". However, I accept the central point that it is important for the Government to assure the Committee, and for the Committee to feel assured, that the provisions of the Bill do not contradict the provisions of the Human Rights Act.

We have not yet heard from the Minister—apart from a rather bland statement—the detailed case that the Government have to refute the powerful argument expounded by the noble Lord, Lord Brittan, a week ago. The noble Lord said that he was certain that these provisions do conflict with the European Convention on Human Rights and the Human Rights Act which came into effect yesterday. The Minister said last week that he would not comment, but now is surely the moment when he must give us that full explanation. After all, that is the least we can expect. We must know precisely why it is that the Government are saying that this does not conflict with the European Convention on Human Rights.

We must know where we stand before we reach the Report stage some time in the future. Can the Minister give us the full explanation as to why the Government are taking this line, which has been refuted by a number of highly learned lawyers?

7.30 a.m.

Lord Whitty

As I said on the last occasion, clearly it is necessary for the Government to be able to reassure noble Lords that this legislation does comply with the Human Rights Act. However, I do not believe that this is the time to do so. The two amendments tabled in the name of the noble Lord, Lord Brittan, were originally grouped with the amendment now before the Committee. They deal directly with the issue of compensation. Therefore, it would probably be better for us to deal with the matter at length when the noble Lord is present in the Committee. I presume that we shall deal with those amendments on Thursday, with a bit of luck. I shall be quite prepared to put forward the full case at that point. I hear the noble Lord, Lord Burnham, ask when, but I am afraid I cannot say at exactly what time that will happen.

Earl Peel

I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clause 15 [Rights of access under other enactments]:

[Amendment No. 205 not moved.]

Clause 15 agreed to.

Clause 16 [Dedication of land as access land]:

Lord Glentoran moved Amendment No. 206: Page 9, line 25, after ("dedicated,") insert— ("() any rights of common or sporting rights in any of that land,").

The noble Lord said: This amendment seeks to protect sporting interests and other rights where land is dedicated. There is a concern that, where sporting rights are reserved to the owner of woodland leased to the Forestry Commission, or sporting rights are held separately from the owner, and the commission or the owner wishes to dedicate the land, those separate interests might not be properly involved in the dedications. This applies to cases where there is multiple ownership.

Anyone with leased rights should have a right of veto over woodland being dedicated. It should not be the case that someone makes a judgment as to whether such interests can be ignored in the dedication process—for example, because it is felt that access would not interfere with the interests of the lessee. If dedication does not respect the rights of those with an interest and that interest is adversely affected, the person with that interest would have a claim upon the person dedicating the land.

Clause 16(2) currently provides that people having interests that are prescribed by the Government may veto such dedications. But will the Government ever prescribe shooting rights, fishing rights or rights of common in regulations? The Government could decide that the existence of those rights should not prevent dedications and simply ignore them. The judgment as to whether or not land should be dedicated is one for the person exercising his rights, not a public servant. At the very least, the clause should not be brought into effect until the relevant interests have been prescribed in regulations under Clause 16(2). We must press the Minister for an assurance to that effect.

The aim of the amendment is to ensure that the interests of those holding shooting rights, fishing rights and rights of common over any land which is considered for dedication will be properly considered. This amendment reflects this need by integrating into Clause 16 the same phrase used to describe rights of common and sporting rights as is given in the definition of "interests in land" in Clause 41 of the Bill. I beg to move.

Lord Whitty

As the noble Lord said, Clause 16 allows for the dedication of access over any land by the owner of the freehold or a long lease. To a large extent this issue is already covered in that Clause 16(2)(a) already provides that, where freehold land is subject to a leasehold interest, the lessee must join in or consent to the dedication. Clause 16(2)(b) provides that the Secretary of State may prescribe other classes of interest in the land, the owners of which must join in, or give their consent, for dedication to take place. This will allow for regulations to address, for example, some rather complex issues about trusts and glebe lands, and about the identification of sporting or other rights which might also give rise to a requirement for consent to be obtained.

We intend to consult widely about which interests should be prescribed for the purposes of Clause 16(2). It is not clear that all the cases the noble Lord cites would be covered. For example, it is not clear that the holders of rights of common should necessarily be requested to consent, or join in, a dedication. Section 193(2) of the Law of Property Act 1925 offers a precedent for the right of the landowner to dedicate common land to public access without the consent of the commoners affected. In any event, the Bill will give a right of access to all registered common land, so it is difficult to envisage circumstances in which the owner of common land would wish to dedicate it under Clause 16.

In deciding which interests are to be prescribed under Clause 16(2), it is important to remember that Chapter II of the Bill allows for directions to be made restricting or excluding access for the benefit of anyone with an interest in the land, including holders of rights of common and sporting rights.

In drawing up regulations under Clause 16(2) we shall consider closely what consent should be required for a dedication to take place. We shall consult widely before reaching any decisions. I hope that with that reassurance the noble Lord will not pursue the point.

Lord Glentoran

I thank the Minister for that explanation. I am glad that more work will be undertaken to clarify the problem. We look forward to hearing the results of that at the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendments Nos. 207 and 208: Page 9, line 43, leave out ("excluding the application of") and insert ("removing or relaxing"). Page 10, line 3, leave out ("exclude the application of") and insert ("remove or relax").

On Question, amendments agreed to.

Baroness Miller of Chilthorne Domer moved Amendment No. 209: Page 10, line 12, at end insert— ("() A dedication under this section does not constitute a disposal or disposition of land for any statutory purpose. () Where the trustees of the governing body of a charity properly and reasonably believe that a dedication under this section of land owned by a charity would not prejudice the fulfilment of the charity's objects—

  1. (a) the charity shall have the power to make a dedication; and
  2. (b) any such dedication shall not be deemed to be ultra vires the powers and objects of the charity.").

The noble Baroness said: This amendment concerns two issues that require clarification at the very least. First, do the Government feel that as drafted the Bill sufficiently protects local authorities which choose to dedicate their land for permanent access against falling into the trap of undergoing the lengthy district valuer process to ensure that they in no way contravene the restrictions that are placed upon them in terms of disposing of assets?

Secondly, the amendment seeks to ensure that charities which own suitable land can dedicate it even where provision of public access is not one of their core charitable objects. Without such a provision there is a possibility that a charity in this position would be legally unable to take advantage of the dedication powers, even where it was clear that access was consistent with its core objects.

Have the Government received advice from the Charity Commission? Does the Charity Commission feel that using the current Bill to modify the general law of charities to allow this kind of dedication to take place is appropriate? I beg to move.

Lord Whitty

I understand the intention of the clause. However, life is a little more complicated, I fear. We are in favour of extending opportunities for public access. If a charity holds land which could sensibly be dedicated to public access without damage to the charity's purposes it should be free to make the dedication. Having received some legal advice on the issue, we are not sure that the amendment is necessary or would make provision in the right way.

The first subsection provides that a dedication is not a disposal or a disposition for any statutory purpose. "Disposition", I think, is the word used in charities law for what is generally known as disposal. Therefore the question arises as to whether a dedication is a disposal/disposition. The noble Baroness asked me about the Charity Commission's view. It is that a dedication under Clause 16 would not be a disposition. But to complicate matters they add that even if the courts held otherwise the restrictions which apply to charities under Section 36 of the Charities Act would not apply by virtue of Section 36(9) which exempts dispositions made under an Act of Parliament. For charities, therefore, the question appears to be immaterial.

The other bodies which might be covered would mainly be local authorities. Under the Local Government Act they may not dispose of land for a consideration which is less than the best that is reasonably obtainable without the Secretary of State's consent. However, those sections are general powers and do not necessarily apply to transactions which are made under other statutory powers. A dedication would be a transaction made under Clause 16 of the Bill. My advice is that Sections 123 and 127 of the Local Government Act would not, therefore, apply. There would be no need for an authority proposing to make such a dedication to consider whether it is a disposal and therefore seek consent.

However, as the Committee will already understand, it is a complex area. We do not think that the amendments as they stand are necessary. The second part of the amendment presents a different problem. I have every sympathy with the intention of ensuring that charity trustees are not discouraged from making dedications. However, it is clear that trustees already have the power to dedicate. The Charity Commission is preparing guidance on this. That includes the situation where a charity has objects not connected with providing access to the countryside. That draft guidance will be available; and I shall be prepared to make it available in the Library and to noble Lords interested in this debate. Clearly we need comments on that.

The other complication is that earlier this Session the House approved the Trustee Bill which affects trustees' powers and duties. The problem is that the amendment risks cutting across that by changing the basic powers and duties of the trustees in a piecemeal and, in almost all contexts covered by the amendment, an unnecessary way. It could cast doubt on the status of other transactions that charities make. Therefore, what seemed a simple and helpful amendment gets us into all kinds of deep water. I would prefer the noble Baroness not to pursue it.

Baroness Miller of Chilthorne Domer

I thank the Minister for his reply. I understand why he would prefer me not to pursue it. I might prefer not to pursue it myself! However, his statement will be helpful to local authorities. I hope that the charities which are concerned on this issue—I refer, for example, to the Woodland Trust—will take up his offer; and that noble Lords who are interested on their behalf will look at the guidance in the Library. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16, as amended, agreed to.

7.45 a.m.

Lord Northbrook moved Amendment No. 210: After Clause 16, insert the following new clause—