§ 3.8 p.m.
§ Lord Whitty
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Whitty.)
§ Viscount Bledisloe
My Lords, by now noble Lords will be aware of the diktat from the Government that this Committee session is to last all night, whatever that may mean. I rise to inquire whether that is either a reasonable or a productive line of conduct. First, I want to make it plain that in raising this issue I do not blame or quarrel with the noble Lord the Government Chief Whip who, as always, is the soul of courtesy and charm; I am addressing the Government in general.
In relation to the first question, I suggest that it is wholly unacceptable to treat in this way the Committee stage of a Bill, the principle of which, especially Part I, is accepted, but the essence of which lies in the detail. Much of that detail has not been 1272 properly thought out. Unless the detail is correct, the Bill is capable of creating great unhappiness and conflict and increasing further the feeling that the Government and the urban interests do not care about the countryside.
A number of noble Lords, among whom I include myself, have tabled amendments with the genuine aim of seeking to improve the Bill and to reduce the area of conflict. We have activities outside the House and simply cannot undertake an all-night session. Tomorrow I have an important meeting first thing in the morning. I owe it to those who pay me to be there and to be in a state which means I am capable of explaining the important issues of which I have the conduct. Proceedings such as this make a mockery of the Government's professed expression of enthusiasm for some Members of your Lordships' House to be part-time Peers who have other interests.
I accept that, in certain circumstances, an all-night sitting may be justified, for example, in a sudden emergency or perhaps where there has been conduct on earlier days which appeared to be deliberately obstructive. But that is not the case here. What happened is that, first, the Bill was brought to this House too late; and, secondly, two whole days before the Summer Recess were thrown away at the last moment to make way for the wholly unnecessary, ephemeral, ill-devised, knee-jerk reaction Football (Disorder) Bill. If the Government, in their infinite wisdom, regard that sort of legislation as more important than this countryside Bill, so be it. But that does not justify the choice they made to deprive this House of its proper consideration of the Bill before us today.
As to whether or not this is a productive course to pursue, I assume that the Government have ensured that they possess the necessary majority to pass this Motion and to see that the House continues until whatever unearthly hour tomorrow morning the Government Chief Whip has in mind. The noble Lord, Lord Carter, may like to consider whether going on for that length of time will achieve progress. Last week in a Committee stage we cantered through no less than 20 amendments in a single group and without a single Division. The Chief Whip may wish to bear in mind that, if the House is to be subjected to an unjustified all-night sitting, caused purely by the Government's prior conduct, such benign co-operation as was shown last week could evaporate. For example, if every one of those 20 amendments had been debated singly and then been the subject of a Division, the Chief Whip might have found that at the end of the day he had made less rapid progress than he would have done by a more reasonable timetabling and the preservation of goodwill on all sides.
I venture to suggest that this all-night sitting is wholly unjustified; it is undesirable from the point of view of the House and I ask the Government Chief Whip, even at this late stage, to indicate that he will change his mind.
§ Lord Carter
My Lords, the noble Viscount was kind enough to tell me that he would be saying a few 1273 words when the Motion was put before the House. This is the first time an all-night sitting has been planned since this Government came to power three-and-a-half years ago. All-night sittings are not something that any of us enjoy; but they are occasionally necessary under any government. For example, under the previous administration the House sat from 2.30 in the afternoon until 8.47 the following morning to debate the Education Reform Bill. My noble friend Lord Shepherd, the noble Lord, Lord Denham, who is in his place, and the noble Lord, Lord Hesketh—all former government Chief Whips—also from time to time needed all-night sittings to get important business through the House.
I am happy to explain why this all-night sitting is necessary. Your Lordships will remember that shortly before the House rose for the Summer Recess, as was referred to by the noble Viscount, we received from another place the Football Disorder Bill. The noble Viscount is entitled to his view on that Bill. I can only comment that 20 football supporters were prevented from going to France for a recent international and there was no trouble in Paris. The usual channels had come to an agreement to allow that Bill to be taken through all its stages in two days. However, the House, as a whole—as is its right—preferred to take much longer over the Bill. That effectively removed two Committee days from the Countryside and Rights of Way Bill before the Summer Recess. Clearly I had to find that time from somewhere.
I should like to make a further point. This concern has been aired, entirely properly, because the Government and the usual channels let the House know in advance that they expect the sitting to go all through the night and into tomorrow morning. It is not always possible to predict these late sittings. For example, the House sat completely unexpectedly until 5 a.m. on the Football Disorder Bill. On this occasion, with a late sitting likely, it seemed better to give your Lordships and the staff—I emphasise, "and the staff"—due warning so that there was an opportunity to adjust arrangements as necessary to accommodate the sitting. Clearly this is a better way of proceeding than just to spring a surprise on the House.
I trust your Lordships will understand my good intentions in this matter and accept that, as always, I have tried to act in the best interests of the House. The noble Viscount referred to my "diktat". I wish that were true with only 29 per cent of the votes in this House. I shall not pretend that the usual channels were overjoyed when I made my intentions known. But they certainly did not object.
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
§ 3.15 p.m.
§ Clause 2 [Rights of public in relation to access land]:
Baroness Byford moved Amendment No. 68:
Page 2, line 23, after ("land") insert ("during hours of daylight").
§ The noble Baroness said: I apologise to Members of the Committee for what will be a slightly lengthy introduction. This amendment is an important one and relates to a matter causing great concern not only to the general public, who wish to enjoy free access, but also to the many wildlife groups who may find that the very things that they are trying to protect are jeopardised if all-night access is given.
§ Amendment No. 68 restricts access to daylight hours. Remembering that this Bill grants tights in addition to existing arrangements, it is unreasonable that those wishing to walk over access land should do so at night without there being exceptional circumstances—a topic to which I shall return later. It should be noted that access at night exists on public rights of way, and that is due to continue. However, there are serious reasons as to why access should not be allowed at night away from clearly defined, identifiable routes.
§ There are worries in relation to public safety, the environment, wildlife and also security for those who live and work in remote rural areas. In addition, much access land is hazardous. For example, moorland contains bogs, cliffs, crags and steep slopes. It is remarkably easy, unless one is very experienced, to become disorientated. People can get in to serious trouble in the open country in a way that does not happen on clearly marked rights of way.
§ The disturbance of nature, particularly ground nesting birds, by walkers at night is a major consideration, especially as much of the access land has SSSI status. Many who favour night-time access entirely fail to grasp the reality of land management and activities such as "lamping"—the culling of foxes at night using high-powered rifles and lamps. That is a regular and essential part of land management practice. It is used over large areas of land, much of which will be designated as access land. For example, a recent study referred to in the Burns report—the noble Lord is not in his place at the moment—found that 21 per cent of foxes in upland Wales were culled by rifles at night.
§ There is also the question of security, on which I touched earlier. To grant a general principle of nighttime access to land, which will only benefit the criminal and the poacher and increase disturbance, is not what we are after. There is already considerable alarm about mounting rural crime. People in the countryside must not have reason to feel more insecure and more vulnerable.
§ Owners and managers of land need to be able to challenge anyone on access land after dark and ask their reasons for being there without perhaps being met by the legal defence of, "We are exercising our right of access". Owners and those looking after the land need to be able to protect their land from any intent to use the right of access as a cover for unlawful activities such as egg stealing, interference with nests, poaching, rustling of sheep or cattle and the planning or execution of burglaries.
§ There is an important link in that regard between the wildlife enforcement provisions in later parts of the Bill and this important section, Part I. Clearly there 1275 needs to be flexibility in the application of the decision in order to allow for those who misjudge the time or have some other genuine reasonable excuse. During the debate in the other place, Mr Mullin said that there was nothing to prevent someone who wanted to camp or participate in night-time activities—for instance, in the Duke of Edinburgh Award scheme—seeking the permission of the landowner.
I read with care the debate which took place in another place on the banning of night-time access. On the first day of the Report stage, the right honourable Hilary Benn said:
There is a potential risk, but we must ask whether it is sufficient to outweigh the rights that the Bill seeks to enshrine in law".—[Official Report, Commons, 13/6/00; col. 824.]
That view was shared by Mr Meacher, who later said that he recognised that the argument was finely balanced. He added that we must keep in mind the need to address the genuine concerns of those who own and manage the land affected. He also suggested that if there are legitimate reasons to restrict night-time access it could be dealt with through, for example, local restrictions on access or even by by-laws. While I understand what Mr Meacher said, I believe that the public would easier understand a general agreement in order that they can distinguish the rights relating to different areas.
§ On the other hand, I accept that some organisations are opposed to a ban on night-time access and suspect that Members of the Committee have lobbied in the same way as I have. Those who have lobbied me suggest that there is a safety angle to the amendment; that is, a safety angle to preventing people from having access to land at night. I am sure that all responsible owners, organisations and charities whose land would be affected by my amendment would be the first to accept that emergency situations may arise. On such occasions it is safer to remain where one is than to risk walking or climbing at times other than those stated.
§ Safety is a big issue to those who walk at night. Some argue that as footpaths are open to the public 24 hours a day, so too should all access country. However, there is a great difference between walking along a footpath and rambling over unknown ground. The Ramblers' Association encourages members on night-time walks to inform someone where they plan to walk and when they plan to return. If ramblers, who are a well organised and experienced group, recommend such action, they realise and accept that night-time walking can be dangerous.
§ How do we balance the desire for night-time access with the needs of those who live or work in rural or remote parts of the country? Furthermore, how do we protect the wildlife? I have put forward both sides of the argument because it is important for us to accept that there are pros and cons on both sides. I hope that in reply the Minister will deal equally with both sides and not tell me only that my amendment is unnecessary.
§ It was argued that already people have access to large parts of the country at night and they have caused no problems. Perhaps that is not surprising 1276 because on the whole they are in well organised groups and are few in number. The Bill will allow everyone to walk where he or she wants, either individually or in groups. Indeed, Mr Mullin stated that a blanket curfew across millions of acres was neither justified nor enforceable. That is yet another issue which we must discuss in this opening debate. However, he went on to say that it was unlikely that more people would suddenly come forward. He thought it more likely that the same people would want to explore new territory. The difficulty is that not only must we consider the safety of walkers, land managers and wildlife but we must guess how many more people might want to walk at night-time.
§ Four groups have lobbied me, as I suspect they have other Members of the Committee. Although I missed debates in your Lordships' House, yesterday I had the pleasure of visiting the Minsmere site in East Anglia, close to where I stayed at the weekend. The RSPB has some 2,300 acres in the area and it has a clear policy of opening from 9 a.m. to 9 p.m., or until dusk if that is earlier. That applies to their reserve car parks, visitors' trails and hides. I asked the officers what concerned them about the Bill. The obvious one, which has not yet been mentioned, is the disruption of birds who come to rest on grassland in the area. Secondly, they reminded me that skylarks, for example, which have several broods during the year, breed until October or November. Indeed, the Minister has tabled a later amendment to extend the period but only until July.
§ The Game Conservancy Trust also wrote to me highlighting the problems of the breeding season, which is longer for some breeds. It also mentioned the control of foxes at night time and lamping.
§ Yesterday, I also visited Dunwich Heath, which is a National Trust property. It is clearly stated on the gates that they are locked at 8 p.m. No night-time caravanning, camping or roadside parking is allowed.
Finally, the Countryside Alliance, together with others, oppose night-time access. It states:
We do not think it can be justified neither in terms of the needs of rural communities nor in terms of public safety or necessity. We recognise there needs to be flexibility in the application of the law to take account of human error".
I hope that I covered that point earlier. People who want to enjoy 24-hour access on access land should be required to seek permission and give notification to the owner, occupier or land manager.
§ Night-time access is already enjoyed by many recreational groups on public rights of way. It should be remembered that the current Bill does not seek to exclude the existing arrangements but it gives a right in addition to, and not instead of, those currently enjoyed. Moreover, much of the access land is hazardous; for example, the moorland contains bogs.
I shall not speak for much longer but perhaps I may quote from an extremely good article which appeared in this month's Country Magazine and was written by my noble friend Lord Buxton. He wrote:
Possibly the most serious aspect of the proposals is the pressure for access at night".
Earlier in the article he argued that if the Bill were about organised access there would be much less argument because most people prefer such access. I suggest that most members of the public want to walk during daylight hours but I accept that some want to walk at night. However, night-time walkers might cause more damage than is anticipated.
§ I apologise for taking quite so much time in moving the amendment but as it rubs off on subsequent amendments it is important to consider it. This is an important issue which we must examine in total. How can we protect our wildlife and ensure that walkers, land managers and those who live and work in rural areas are safe? I beg to move.
§ Baroness Mallalieu
When the Minister opened the Committee stage of this Bill he made it clear that there were a number of areas as regards which the Government were minded to listen to the arguments. This was not one of them but it is hoped that, having heard the debate that is about to take place, the Government will think again about this aspect.
Policing in rural areas only works because local people keep their eyes open. In many places the local village policeman has gone or will be going very soon. In my local village in Somerset the village policeman has just gone, the police house has just been sold off and the nearest police station is 40 minutes away.
Those who live in isolated places are now most vulnerable to burglary and to theft. Property and animals which necessarily have to be left in remote places are necessarily insecure. Local people need to know who is about, particularly at night. It is not possible to call a policeman to check. During the day a suspicious vehicle is more likely to be spotted, but that is not so at night.
Poaching is a real and growing problem—and it is not carried out by the loveable village rogue of folklore with his large coat and a pheasant for the pot; it is carried out by organised groups taking large numbers of game birds and particularly, and increasingly, deer for commercial gain. A neighbour of mine was badly injured last year when he challenged just such a group.
Sheep rustling in the uplands, until the collapse of the sheep prices and the increase in the price of diesel, was a very real problem, and my neighbours in Somerset have lost a considerable number of sheep in the last few years. It happens at night.
Thefts, even on the hills where one would think there was nothing to steal, happen regularly. Sheep feeding equipment, electric fencing and even gates are stolen. Isolated farm buildings are particularly vulnerable, as I know to my cost. Vehicles are taken from farmyards, particularly all-terrain vehicles which can quickly and readily be loaded into a van or on to a small trailer.
Those living in isolated rural areas need to know who is about at night. The sense of security and the quality of life is diminished if lights are seen on the hill and one knows someone is out there but it is not known who it is or what they may be up to, and one cannot call swiftly for help to find out.
1278 Some people enjoy walking at night and I am one of them. Indeed, I spent part of the millennium night walking alone on the hills and had a superb time. Of course I first of all ensure that I walk either on a recognised path or that I have received permission.
It is said that night access causes no trouble. I live in a fairly remote farmhouse—not affected by this legislation. A much used footpath runs through the garden, and the only real trouble we have had in 20 years has been with night access. It was an organised all-night walk, of which we had received no warning, which woke the household from 4 a.m. One of our fields was used as an improvised night latrine, and a considerable amount of litter was left behind. A gate was broken because walkers had clearly not seen the correct route with a style. An electric fence that was in place at dusk had gone by morning. These are some of the problems that we live with now, but these provisions would make life far more difficult for those in areas to which the Bill applies and would boost growing rural crime.
Most public parks are closed at night. The difficulties of night access are recognised in our cities. They should not be imposed on our countryside. Those who own land, with rare exceptions, are not unreasonable. If one has a good reason to want access, if trouble is taken to find out who owns the land—and it is not difficult if local inquiries are undertaken—and if permission is asked, then unless there is a good reason to refuse it, in my experience it is likely to be given. In most cases the days have gone when one knew all the neighbours, but when one did know them, in my experience access was virtually unrestricted. As a child I can remember being able to walk or ride almost everywhere, provided it was done with consideration. But those who insist on night access as a right do not, I think, treat those who live and work in those areas with that consideration. It is a small sacrifice for the visitor to have to ask first and thus ensure peace of mind for those who live there permanently.
§ The Lord Bishop of Blackburn
I begin by declaring an interest as a member of the board of a countryside agency and as a member of the National Access Forum.
I rise to urge the Minister to resist this amendment which would prevent access by night. I do so knowing that some of the arguments are finely balanced, but I also know that I have the support of numerous groups representing young people and the training and the needs of young people, groups which have for a long time had a particular care and concern for the well-being and the safety of young people, organisations like the scouts and the guides, those who run the Duke of Edinburgh's award scheme in the various areas, and the Youth Hostels Association. But I also speak at the specific request of one of the officers of the Lake District National Park, which has allowed night access to land for a long time. Indeed, I think that access to 1279 the Dartmoor National Park goes back to the middle of the last century, but if I may quote from the officer's letter:Just one last point that I would make and that is that there seems to be a growing lobby in favour of seeking an amendment to the Bill in the House of Lords with regard to prohibitory access to open country at night. ANPA [the Association of National Park Authorities] and the Lake District National Park Authority will be urging the Government to resist such a change. As you will be aware, there is a long history and tradition of access at night for events such as the Bob Graham Round. Also indeed, the less formal but nonetheless perfectly legitimate walking onto the fells before dawn or coming down after dark, having enjoyed a full day on the tops".There is a difference of opinion between those who live and work in the countryside and manage land with regard to this issue of access by night.
It is a long time since I was a venture scout leader in Surrey but I well remember the training opportunities— yes, the excitement, the pain and the fun of what we euphemistically called "night hikes". One would start somewhere near Hindhead, and, thinking one had travelled to a different spot by the morning, end up in much the same place having got lost.
I would also point out that if this amendment is accepted we are not making available to the general public who would like to do these things what is available in the training of the armed services and deemed to be a valuable experience for those young men and women.
This amendment takes us to the heart of the argument about access. In a sense we say, "Yes, access", and then we produce a thousand caveats to limit that access, and we must be concerned about that.
§ Lord Northbourne
Is the right reverend Prelate suggesting that when he was a venture scout he hiked across private land without asking permission? I am sure that that is not so. My experience as a scout was that one was polite. All that is being asked is that people should request permission in a normal civilised and courteous way.
§ The Lord Bishop of Blackburn
Of course one did not do that because one hiked on land similar to that of which we are talking and which already had access. There is a considerable amount of land in the United Kingdom in the national parks and on the moors where that access is already available free of charge.
The amendment seeks to prevent such access and it is believed that it will prevent those who would enjoy that special experience, both adults and young people, being on the moorland at night, and for some that is indeed a very deeply spiritual experience.
There are three other comments that I should like to make. First, in a statement which was circulated to most noble Lords in July the National Trust took a contrary view to the noble Baroness, Lady Mallalieu, and said that in fact greater access may indeed deter poachers. I would suggest that the National Trust has first-hand experience of these matters.
1280 Secondly, the British Mountaineering Council raised the question of those who enjoy mountaineering but who cannot exactly time when they are going to come down from the peak which they have scaled. There are some issues there which need to be carefully addressed before it is decided that a blanket prohibition should be placed on access at night.
Thirdly, there is the question raised by the amendment put down in the name of the noble Lord, Lord Roberts of Conwy, about asking permission. I believe that that is a very noble ideal, but I wonder whether it is workable. If one tries to increase access for the ordinary citizen will he know, for example, to whom the land on the Pennine moors close to where I live belongs? For that and a number of other reasons, which I do not go into because many other Members of the Committee want to contribute, I hope that the Minister will resist the amendment.
§ Baroness Carnegy of Lour
As someone who was responsible for training guide leaders all over the United Kingdom for some time, I can assure the right reverend Prelate that he never went out with the venture scouts without permission being sought from, or warning being given to, anyone living in the neighbourhood; otherwise, the Scout Association and Guide Association would have been held in very great disregard.
§ The Lord Bishop of Blackburn
I speak to Amendment No. 68 which is concerned with the banning of night access. We shall come later to the amendment in the name of the noble Lord, Lord Roberts of Conwy, which, as I understand it, is concerned with seeking permission. Although I believe that that is somewhat unworkable, that is an argument for another amendment.
§ Baroness Carnegy of Lour
I can assure the right reverend Prelate that it is not unworkable at all if part of one's job is to give people experience, which is often spiritual, and help the leaders of such organisations, or the Army, to carry out various operations at night. That very important activity should be allowed, and on that I absolutely agree with the right reverend Prelate.
We have already heard a number of arguments, many of which are extremely interesting and true. Those who live in remoter areas all over the country are astonished at the suggestion that people should be allowed simply to roam about at night. The noble Baroness, Lady Mallalieu, has put it much better than I. It is terrifying to see torchlight and hear voices near one's cottage but to be unaware who is there. For that reason, the Association of Chief Police Officers is strongly against the Bill as it stands. I should have thought that the Government would agree that the interests of those who want to go about the countryside without permission should be overridden by the interests of the people who live there.
The argument has nothing to do with the objections of great landowners to the possibility of game being poached, which I believe the Government have in 1281 mind. If one lives in the remoter areas of the country it is terrifying to see this happen, or to know that it may happen. It already happens near where I live. People are amazed that the Government are even thinking of this. I very much hope that something will be done, even if the precise amendment tabled by my noble friend is not accepted.
§ 3.45 p.m.
§ Baroness Farrington of Ribbleton
For ease of debate in the Committee, perhaps I may remind noble Lords that, against the Government's considered advice, these amendments have been de-grouped. Therefore, the amendment that the Committee is now debating concerns a ban. I hope that Members of the Committee will take that in the spirit in which it is meant in the light of concerns expressed about the debate being too long.
§ Viscount Bledisloe
The noble Baroness and the right reverend Prelate have fallen into the same error as the Ramblers' Association, which suggests that these amendments seek to diminish current opportunities for open air recreation. That is wrong. As the noble Baroness, Lady Carnegy of Lour, makes plain, organisations which at present go into the countryside at night do so having first sought permission from the landowner and being granted it. Nothing in this Bill can possibly detract from the right of any individual landowner to continue giving consent to people to go onto his land at night. The amendment does not say that permission cannot be given but that it cannot be done under the right given in the Bill.
There is a great difference between obtaining permission and going onto the land. Permission will normally be sought by a responsible organisation which will, in its own interest, ensure that its members behave themselves properly. In that case the landowner and those who work and live on the land know that those people are coming. If so, one does not have the terror spoken of so well by the noble Baronesses, Lady Mallalieu and Lady Carnegy of Lour. The problem arises where people come onto land as of right under the Bill and one has no idea that they are to come but one sees and hears their movements. One does not know whether they are amiable people who are exercising their rights under the Bill or their intent is less noble and they are there to steal vehicles, cause trouble and so on. Those who talk about this measure in terms of a total ban misconceive the situation. All that is being said is that the Bill of itself will not enable one to walk on land at night without asking.
I hear the noble Lord, Lord Dubs, say that that is a different amendment. It is not. I have tabled an amendment which provides that if the present amendment fails consent must be sought and that consent should not be improperly withheld. Any landowner has always been entitled to give permission, and nothing in this Bill prevents that. When the right reverend Prelate ventured onto land in his boy scout days he did so, as the noble Baroness, Lady Carnegy of Lour, said, either on a public right of way or 1282 pursuant to permission obtained by the scout authorities. Those permissions will continue to be just as readily available after the Bill as before it.
If one does not know that somebody is coming and one lives on the land, what does one do? Does one get up, go out and see whether they are people of evil intent? Does one return to bed annoyed that one has been disturbed by some perfectly respectable hikers? Does one assume that they must be hikers and do nothing, only to find in the morning that they are rustlers and all one's sheep have gone?
The justification that has been advanced for night access is trivial compared with the interests of the people who live on the land. It was suggested at Second Reading that somebody might want to see the night sky. The night sky will be very much the same from the right of way as half a mile away in dangerous moorland. The right reverend Prelate told us how funny it was to be lost in Surrey. Being lost in Surrey may well be a joke but to be lost on mountains or open land when one has not been warned by the owner about the location of the pits and moors is nothing like a joke. To try to extrapolate semi-urban Surrey to moorland and mountains is a total confusion of thought. I strongly support the observations of the noble Baronesses, Lady Byford and Lady Mallalieu, although I suspect that when the Committee comes to consider a provision to this effect Amendment No. 75, which allows access one hour before sunrise and an hour after sunset, is preferable to the amendment that the Committee is now debating.
§ Earl Peel
Broadly speaking, I too support my noble friend's amendment, although like the noble Viscount, Lord Bledisloe, I prefer the wording of Amendment No. 75 to which I have put my name.
One of the great sadnesses about the Bill is that it appears to have polarised the two sides in such a way that the practical difficulties which the Bill produces tend to be pushed aside on the back of ideology. The question of night-time access appears to have become a cause célèbre for the access groups, but, as the noble Baroness, Lady Mallalieu, quite rightly said, it is a matter of very deep practical concern for those who live and work on the land concerned. At the moment there is nothing to prevent a person or a group of people entering at night what will become access land, provided that they remain on a footpath. As the noble Viscount, Lord Bledisloe, rightly said, the idea of solitude or the ability to enjoy the night skies will not be compromised in any way, shape or form.
In a brief which I received, as I am sure did other noble Lords, it was suggested that a number of traditional fell races will be prevented. I cannot understand why that has been suggested because there is nothing which says that if night-time access is precluded, any of the existing night-time activities should not continue. Clearly, they have been negotiated with the owner, in conjunction, no doubt, with the local authority, which have consented. Why should that practice stop now? The right reverend Prelate the Bishop of Blackburn referred to his 1283 experience with scouts, guides and so forth. Quite clearly, those activities were negotiated. I see no reason why that practice should not continue.
There is one important aspect of the whole question of access about which we need to be clear. It is easy to talk about access land as being "the same". It is not. I have a great deal of affection for the Lake District. The environmental impacts on the Lake District have been fairly great. Many of the traditional ground-nesting birds are no longer there. Sadly, the area does not have the same level of wildlife resource that it once had. As a result, the impact of access on that area would be far less than it would be on, for example, the north Yorkshire moors, the Pennine dales or the Durham dales where the tradition of game management has kept many species in place. I speak for the majority of those responsible for the management of those areas when I say that they have a very, very deep concern indeed about the implications of night-time access.
My noble friend Lady Byford referred to the potential impact of night-time access on ground-nesting birds, many of which are Schedule 1 birds. She was absolutely right to do so. It seems to me extraordinary that we should allow people, even with the best intentions, to go on to the ground and affect birds of that importance. One should also bear in mind the game factor. The grouse moor interests have an enormous economic value to those areas. I believe that they should not be compromised by those who would wish to exercise this new right if they were given it.
My noble friend also referred to the importance of controlling foxes at night. That activity goes on all the year around. I cannot believe that the Government are seriously considering compromising that because of a few people who might wish to exercise a right of night-time access. I need hardly remind the Committee—it has been mentioned so many times before—that the Minister, Mr Meacher, has on a number of occasions made publicly clear that there is nothing in the Bill which should compromise the local economic well being of the countryside or its management practices. As the Bill proceeds, those words seem to be becoming hollower and hollower.
My noble friend Lady Carnegy rightly drew our attention to the effect of night-time access on the security of houses next to access areas. I do not wish to dwell on that. That is a problem which has been expressed to me by a great number of people.
Lindsay Waddell, the highly respected chairman of the Moorland Gamekeeper's Association, recently said:The Poaching Fraternity will hardly believe what the law has given them if this is allowed. They will be able to enter land at night unchallenged, even with Dogs on the premise they are going for a walk".I cannot believe that we will allow that to happen. I know that poaching is a criminal offence. I am sure that the noble Lord, Lord Whitty, when he is winding up on this issue, will remind us of that and will say that there are measures which we can take against those 1284 who perpetrate that crime. Surely, it is right and proper that we should introduce measures into the Bill that prevent those things happening in the first place.
I also make a plea for those managers on the land who have worked hard during the day. They then go to bed at night not knowing what is happening to the areas in which they work. I do not believe that it is reasonable to put on them this additional onus and concern, which would now in effect last for 24 hours and not just 12 hours. That is totally unreasonable.
I think it is fair to say—I do not think this is an unreasonable supposition—that the Ramblers' Association has been given virtually everything that it could have dreamed of in the Bill. Fair enough, that has always been its objective. I respect that. Surely there must come a point when enough is enough and when common sense and pragmatism must prevail, particularly when such important wildlife management issues and local economies are concerned. Therefore, it is incumbent on the noble Lord, Lord Whitty, to justify, as I am sure he will, the inclusion of night-time access in the Bill and to give very thoughtfully indeed his reasons for doing so. It is incumbent on him in trying to justify this measure to answer all the points that have been made by noble Lords.
When we discussed Amendment No. 1—it seems like a long time ago—I asked whether the Government were satisfied that the proper level of research had been undertaken to ensure that the impacts of access on ground-nesting birds would not have a serious effect. I shall not rehearse those arguments now. I believe that the Minister gave me a wholly unsatisfactory answer. Therefore, I ask him again whether he is satisfied with the level of research that has been undertaken to ensure that the measures will not have an impact on the important Schedule 1 birds.
As English Nature states in its brief to the Committee, it is essential that measures for protecting wildlife under Part III of the Bill and those for managing Part I are compatible. I believe that that is absolutely essential. However, I suspect that measures such as giving night-time access will not help in that regard.
Finally, I am bound to say—I make this as a general point, not necessarily referring specifically to access—that I believe that it has now become abundantly clear that there has been a conspiracy of silence among some of the main conservation groups towards Part I of the Bill. They have done so exclusively to get Part III on to the statute book, regardless of the implications of Part I. Many of us find that not only disappointing but thoroughly irresponsible, particularly because of the severe management implications of the right to roam on wildlife and conservation.
Perhaps I may quote the chief executive of one northern wildlife trust—not Yorkshire. He said:The wildlife protection measures in the Bill are so important we are prepared to live with the downside of Part I".I do not believe that there should be a downside to Part I. It should be incumbent on the Government to ensure that the downside is removed. Part III need not be compromised by some of the ill-thought through 1285 aspects of Part I if only the Government would allow for sensible concessions by listening to those on the ground whose objectives are born out of practical experience.
I pose this final question, and I do so with some sadness. Where is the RSPB in all of this? We are talking about issues affecting birds. The RSPB is the leading bird conservation body in Europe. But from the RSPB there has been a sinister silence on the Bill. In fact I could say that we have not had a dicky bird from it. I think that it is about time the RSPB came out of the closet. Either it is with those who manage land for the benefit of wildlife or it is not. So far, I have to say, I am completely unclear.
§ 4 p.m.
§ Baroness Young of Old Scone
I should like to rise to the challenge of the noble Earl, Lord Peel. I had not intended to speak on this amendment but I feel that I must respond to the point that he unfairly made. He said that many of the conservation bodies are trading off the downsides of Part I in order to secure Part III of the Bill. I should declare an interest as chairman of English Nature, the statutory body concerned with nature conservation, and as vice-president of the RSPB.
I shall restrict my comments entirely to the issue of night access and conservation. It is undoubtedly the case that night access could cause damage to nature conservation interests, but there has as yet been remarkably little empirical or research information to that effect. As has been said, extensive areas of land are already open at night, including the great majority of English Nature's national nature reserves and the National Trust's land. In general, very few problems are associated with night access. That is the case not because of the research base or the biological issues but for two reasons. First, few people choose to visit the countryside at night and those who do are often content to utilise rights of way. Secondly, it is rash for people to wander off tracks and paths at night and over difficult terrain. Therefore, I believe that it would be disproportionate for there to be a general restriction on night access purely for nature conservation reasons.
The noble Earl, Lord Peel, made valid points about grouse management and pest management and other noble Lords referred to rural crime. I shall not comment on those points. I shall comment on conservation issues. It is unfair to say that conservation bodies have not stood up to be counted on the issue of night access. There will be areas where night access is a problem. There will be vulnerability because of the sensitivity of the nature conservation interest and because of the degree of demand for access, particularly locations where night visiting becomes popular but which are near local population centres. Where there are difficulties because a site is sensitive or is particularly attractive, it will be possible through a variety of provisions—Chapter II of the Bill, existing SSSI legislation, the strengthened SSSI legislation in Part III of the Bill and the habitats regulations under European legislation—to apply local restrictions.
1286 I really do wish to make the point that the conservation bodies are not trading off the downsides of Part I for Part III of the Bill; and that is particularly so on the issue of night access.
§ Baroness Strange
I support the amendment and I wholeheartedly agree with everything said by my noble friends Lady Byford, Lady Mallalieu and Lady Carnegy. I say to the right reverend Prelate that scouts and guides are quite different because they ask for permission. We have had both scouts and guides camping in our garden and fields. They have discussed their various nocturnal activities with us. We have m fact joined in some of them and had great fun too!
Those of us who live in the country, in whatever size house, may be miles from a police station. We are terrified of having people trampling lawfully all round our houses in the dark. We do not know who they are and we do not know why they are there. We can only assume that it is for some not good purpose. Not only are they a cause of alarm and upset to the people who live in the country but they are also alarming and upsetting to birds and animals that are not nocturnal. Some birds may be frightened off their perches at night if they hear people underneath them. They may be unable to return to their perches because they cannot see in the dark.
I hope that the Minister is listening to what is a very reasonable argument because, for a tiny amount of pleasure and a great deal of pain, what is proposed by the Government does not seem worth while.
§ Lord Marlesford
A few moments ago the noble Baroness, Lady Farrington, commented—I almost said complained—that this amendment had been degrouped against the strong advice of the Government. As I understand the position, the grouping of amendments is not a matter for the Government. To some extent it may be a matter for the usual channels but, ultimately, it is a matter for Members of the House. I really do suggest that that kind of comment is not the best way of directing or choreographing our proceedings.
I am glad that the amendment was degrouped because it has focused the debate on precisely the point we are trying to make. I am one of those who support the Bill. It is a good Bill and I hope that it becomes an Act. But I am surprised that the Government did not recognise that, by including in it an apparently unlimited right of night access to all land to which the Bill gives general access, they were being foolish. There is already a great deal of night access to the countryside. First, there is de jure night access on public footpaths. Our whole country is covered by them, and quite right too. I was on the Countryside Commission for 12 years. One of our main objects was to ensure that all the footpaths in the country were open. Secondly, there is a good deal of de facto access. On many occasions, access is given by consent. The right reverend Prelate made a somewhat confusing point when he implied that his boyhood experiences as a venture scout would not have been possible if the amendment had been passed. I think that my noble 1287 kinswoman Lady Carnegy of Lour was quite right on this point; namely, that the Scout Association, along with many other organisations, would not dream of sending groups of people out into the countryside, other than on footpaths, without asking for consent. That is common sense.
Furthermore, a great deal of access to the countryside is made available by silent consent. I suspect that there are only few occasions when legitimate, decent, reasonable and harmless access meets any protest from landowners or farmers. However, with this legislation, the Government will be introducing a measure that will be used by the kind of people whom I am quite sure they do not wish to encourage. It could be used by those who seek to approach private premises in remote areas to defy the police or anyone else who attempted to challenge them. They will say, "An Act of Parliament says that I can be here. Be off with you, not be off with me!". That is foolish in the extreme.
My noble friend Lady Byford commented on the safety of people utilising night access. Many noble Lords will recall the story of the Hound of the Baskervilles. The wicked Mr Stapleton owned the hound with which he hoped to frighten to death Sir Henry Baskerville, thereby gaining the estate. He came to a sticky end because, having released the hound which was subsequently killed by Sherlock Holmes by emptying his revolver into its flanks, Stapleton sought to gain refuge in Grimpen Mire. However, he was swallowed up by the mire because he became lost in the night. The point that new dangers will arise is extremely valid.
§ Lord Carter
Will the noble Lord give way? I know that the noble Lord is a stickler for protocol. Given that, would he please take care not to wander into the gangway? Strictly speaking, that is against the conventions of the House.
§ Lord Marlesford
I humbly apologise. I shall remain exactly where I am, both literally and in my view of this amendment.
Discussions have taken place as regards the liabilities faced by landowners and occupiers for people having access to land. To put it mildly, those negotiations on liability could be much muddied when the element of night access is introduced.
The Bill introduces a great many steps forward, but this step is, frankly, a step too far. I hope very much that the Government will realise that this House, which undertakes the task of scrutinising in great detail—clause by clause, line by line and, if necessary, word by word—this and all other Bills, has an opportunity to make this a better Bill. I hope that the Government will not alienate a large section of rural opinion by not recognising the insanity of this particular provision. I must warn them that they are in danger of doing exactly that.
§ 4.15 p.m.
§ Lord Taylor of Gryfe
A number of years ago I was chairman of the Forestry Commission. In my day, and indeed to this day, the Forestry Commission operates a policy of open access. That leads me to the belief that some of the fears, apprehensions and terrors that have been expressed in this debate may be somewhat exaggerated.
It has been stated that no research has been undertaken on this subject. The Forestry Commission was responsible for 1 million hectares of land and as such is the largest landowner in this country. It has been operating for 60 years. Earlier today I telephoned the commission to ask whether any change in policy had been introduced as a result of the public discussion on the provisions of the Bill. I was told that the commission had no reason to change its open access policy. It further stated that, "We have not heard of any cases of the difficulties that have been outlined in those debates". Therefore we do have a degree of research to consult in relation to this subject; namely, 60 years of experience of governing 1 million hectares—although unfortunately that figure may have shrunk to 850,000 hectares—of land.
§ Baroness Byford
I do not wish in any way to be rude to the noble Lord or to interrupt his remarks. However, would he be kind enough to speak across the Chamber? This side of the Committee is having a little difficulty in hearing what he has to say. I hope that the noble Lord will forgive me.
§ Lord Taylor of Gryfe
I apologise to the noble Baroness. I addressed this side of the Committee because I gather that I may have some allies here.
I wished only to state that the argument that no research has been undertaken on this matter is not quite true. The research is in place and may be read, gathered after 60 years of good and sensible land management. The Forestry Commission is concerned not only with planting trees, but also with wildlife conservation. I mention that because many speakers have expressed apprehension about the dangers to wildlife which may arise from this measure. In the light of that long experience, we have something upon which we may draw and perhaps diminish some of the worst fears that have been expressed.
§ Earl Peel
I thank the noble Lord for allowing me to intervene. I have listened with great interest to the words of the noble Lord and I have enormous respect for his long experience. However, does the noble Lord agree that access to forested areas is a rather different issue from access to open country? I hope that the noble Lord will address his remarks specifically to the kind of land that will be affected by the Bill.
§ Lord Taylor of Gryfe
As regards the rights of ramblers and public access, when I read the terms of the Bill I do not see that a great deal of difference exists between the rights of people to wander through the vast estates of the Forestry Commission—estates that are not exclusively covered by trees—and the right of 1289 access to open country. As I have said, the commission is concerned with good land management, including addressing issues of conservation.
A number of noble Lords have been recalling their youthful experiences as ramblers, hikers and climbers. To that end, I am glad to see in his place the noble Duke, the Duke of Montrose. That is because, around 30 miles outside Glasgow on the noble Duke's estates stands the great Ben Lomond. To climb that mountain and see the sun rise is a marvellous sight. However, to enjoy the vista, the hiker must commence his journey at 3 a.m. in order to reach the summit and so witness that wonderful panorama. Cases do arise where people require night access and it would be most unfortunate if they were restricted by the provisions of the amendment.
For many years I have been very familiar with the work of the Forestry Commission in south-west Scotland. It may interest the noble Lord to know that, over recent years, the Forestry Commission has posted notices and closed gates so as to stop access after dark. How far those measures apply to the rest of Scotland or, indeed, to the commission's estates in England, I cannot say. However, I can confirm that that has been taking place in south-west Scotland.
§ Lord Taylor of Gryfe
Perhaps I may confirm again to the noble Lord that I telephoned the Forestry Commission only a few minutes before we commenced our proceedings today. I asked whether any restrictions have been imposed on Forestry Commission land. I was assured that there are no such restrictions.
Whatever may be the case as regards the Forestry Commission, I believe that the point made by my noble friend Lord Peel about the position of the commission should be borne in mind by the Government.
I shall be brief in my comments on this vital amendment. I wish only to put forward two arguments. My first point must be made because, alas, we already suffer from a great deal of rural crime and that crime has increased over recent years. That is especially the case in East Anglia, where I live for most of the time. If we allow the right to roam to continue after dark, surely rural crime is certain to increase. Indeed, I hope I am not exaggerating when I say that it would be an invitation to poachers, to burglars, to cattle thieves and to those who steal sheep. We should bear that in mind.
My other argument is that it is in the interests of people given the right to roam—especially young people and inexperienced townspeople—that they should not fall into danger after dark, which they could easily do. If a mist or fog comes down in a remote place where people have a right to roam and members of a group being led by an experienced person get scattered, they may lose their way and could 1290 have accidents. They could even be killed if they have a bad fall. We should accept the amendment in the interests of some of the people with a right to roam.
If I may say so, I was very surprised by the case put forward by the right reverend Prelate when he argued in favour of young people. It is young people more than those who are older who may fall into the dangers I have described. I hope that the Government will heed the powerful arguments put forward by the noble Baroness, Lady Mallalieu, and by noble Lords from both sides of the House. In my opinion, it would be a tragedy if this amendment were not accepted.
§ Lord Judd
Before the noble Lord sits down, would he not agree that the point he has made about mist is exactly the kind of argument that the mountain rescue people put forward about the dangers of this amendment? It would encourage people to take risks in coming out of the countryside when they would be much better advised to stay where they are until the atmosphere clears and they can see their route. There are great dangers in this from a practical point of view.
With great respect to the noble Lord, that is a matter of opinion and a matter of common sense. I think that common sense is on our side in this matter.
§ Lord Dubs
Perhaps I may venture my opinion on that point before I turn to the few brief points that I wish to make. On one occasion I was walking in Skye; the mist and the darkness came down and it was not safe for us to climb back to safety—so we stayed where we were. That was my one direct experience. It would have been dangerous for us to continue the walk because the mist was low, the weather was bad and darkness had fallen.
Turning to the main substances of the debate, a number of speakers have mentioned that there are areas where there is already access at night—the national parks, the Lake District, Forestry Commission land and so on. If the consequence of allowing night-time access to the other areas covered in the Bill is going to be so appalling, as has been suggested, surely the onus is on those Members of the Committee who are putting that case to demonstrate why there are problems in the Lake District, on Dartmoor and elsewhere. Yes, there is crime in the Lake District—but is it such that if access at night to the Lake District were stopped the crime rate would fall? Would the safety of walkers be that prejudiced if they were not allowed to walk on the hills in the evening or when darkness falls? I suggest riot. Unless someone can demonstrate clearly that the consequence they are foretelling for other parts of the country have already taken place in those where there is access, I would suggest that there is no argument for this amendment.
I concede that there are some parts of the country where, possibly for limited periods of the year, it may be appropriate to have local restrictions judiciously and sensibly applied. Whether this should come about through by-laws or through the countryside agencies' 1291 powers of delegation I am not sure, but I accept that there may be exceptional circumstances in some parts of the country where these arguments apply. I hope that my noble friend the Minister will comment on that.
As regards safety, I have the feeling that there is a tendency to nanny those of us who want to walk or climb in the hills by saying that it is for our own good that we should not be there after dark. Hill walking and climbing have some dangers and there is a need to educate hill walkers and climbers so that they behave sensibly. But, please, let us not nanny our young people—or even people of my age. We know what the risks are and we are prepared to take them. For heaven's sake, let us accept that there are risks but that they can be minimised, not by this kind of amendment but by educating and encouraging young people.
When the noble Baroness moved the amendment she spoke about ramblers being uncertain about safety and being asked to keep a record of where they planned to go. That is good safety practice in any hill or mountain area, day or night. One should keep a record of where one is going—back at home, in a hotel or wherever—so that if there should be an accident the mountain rescue people can find one easily. It is nothing to do with any concession by the ramblers to the dangers of night-time walking.
Finally, as regards permission—which I know is the subject of a later amendment—for the life of me I do not know where I would ask for permission. One walks across many farms, hills, moorland and so on, where there are many different owners; to find a way of asking permission is too difficult. If one wants to camp on a person's land, yes, of course one would ask for permission; but to ask for permission only to walk there would be far too difficult.
The amendment is ill conceived. The argument for local restrictions on a limited basis is a better one.
§ Lord Greaves
I speak in support of my Pennine neighbour, the right reverend Prelate, and of other noble Lords who have spoken to oppose the amendment. This will obviously be one of the major debates in the Committee; it is right that it should be. This is a vital debate and an extremely important amendment. I say that because I believe that the amendment will do more than any other to undermine the fundamental basis of Part I of the Bill.
I, too, used to be a scout. When I was a scout, I went on the moors and the hills at night—but I cannot remember ever asking permission of anyone. The reason I never asked permission of anyone is because we always went on rights of way, recognised access land or the kind of land which one noble Lord described as "land with access by silent consent". I cannot remember who said that, but it is a very good phrase; it sums up the position of a lot of land in this country where there is not formal access but de facto access. There is a real concern that the de facto abilities that people have to go on such land at the moment will be destroyed if the Bill is too restrictive.
1292 I have been lost on a hill at night; I have been benighted and I have been in some fairly desperate situations in my time—but, with the greatest respect to the noble Baroness, Lady Byford, I do not want her charging over the horizon to stop me. Going on hills and mountains is, by its very nature, subject to a certain degree of danger. There are obviously extremes. A walk over Ilkley Moor on a sunny Sunday in July clearly carries a lot less danger than tackling difficult and demanding routes on major crags in winter conditions. There are extremes, but between those extremes there are circumstances in which a great number of us quite frequently find ourselves.
A large part of the experience of being on a mountain or on moorland is finding oneself in situations of danger and being able to cope with them by using skill, experience, and often courage. That is what it is all about. The activities are different for different people, but the experience, which might be broadly termed "mountaineering", is the same. Certain Members of the Committee seem to want to prevent people putting themselves in positions of danger in order to tackle them. That is nannying. I should not be happy with any such provision in the Bill.
The amendment attacks the principle behind the Bill for the important reason that it would, by definition, restrict the amount of access that would be available through the year. To restrict access at night would be to cut the access time provided under the Bill by 50 per cent. In more remote, higher areas, it would also prevent effective access in winter. I have in front of me a list of sunset times for Newcastle upon Tyne; I have been unable to find a timetable for the mid-Pennines. In Newcastle, in the middle of December the sun will set at 15.38 p.m. for a week just before Christmas this year; on Christmas Day it will set at 15.42 p.m.—the right reverend Prelate may not approve of my going out on the hills on Christmas Day, but I sometimes do. That would mean that people would have to be off the hill by 20 minutes to four in the afternoon. Frankly, that is not practical or realistic. Even if a later amendment were to be agreed, access would end at 20 minutes to five. Even if there is to be a night-time curfew on the hills, to set it for that time is simply not realistic.
Walking and climbing on the moors, hills and mountains takes place in spring, summer, autumn and winter, morning, afternoon and evening—and at night; and we do it in all weathers. People may think us mad. I happen to think that hitting a little white ball around and trying to get it into holes with flagpoles in them is a mad activity. The point is that we each do our own thing. The mountaineering and hill-walking experience is one which cannot be constrained to particular times of year or particular times of the day or night. I should have thought that the fear of what people might get up to would be far greater in relation to conditions of thick fog—when they can creep around without being seen far more easily than they can on a nice, clear, moonlit night when the moon casts its shadows and the whole landscape is magical. Why do not the proposers of the amendment suggest 1293 restrictions in thick fog and when the cloud is down on the hills—which happens very often in my part of the world? They do not do so because that would be unrealistic and impractical; but the principle is the same.
People undertake such activities for reasons of physical recreation and activity, and for intellectual stimulus, including observing and being among the wildlife in an area. They do so for the spiritual experience, as the right reverend Prelate rightly mentioned. The greatest spiritual experiences that I have ever had have been on the mountains in the middle of the night. They do so in order to pit their skills and abilities against the conditions in which they find themselves. That is what it is all about—and much of that takes place at night.
The noble Viscount, Lord Bledisloe, indicated that the Bill allows every individual to walk where he chooses. I know of no other part of Europe where there is open access to the moors, hills and mountains but where they are closed at night. There is a general principle that if access is available during the day, that is also the case at night. Denmark has been mentioned. I am not sure that it has any moors, mountains or hills; and the highest point in Denmark is lower than the height above sea level at which I live in the middle of the Pennines.
Points have been raised about crime and policing. It beggars belief that someone who intends to burgle a house will not do so because it would mean trespassing on his way to the house. It is astonishing to hear that put forward as a rational and sensible argument. If it is the intention of burglars, poachers and other criminals to go into, for example, the moorland areas of the Pennines, they will do so now. Passing legislation allowing law-abiding walkers and climbers to be there will not affect the situation at all.
§ 4.30 p.m.
§ Lord Glentoran
Will the noble Lord give way? I fear that he has completely missed the point when it comes to crime. It is one thing to know that anyone outside is there with criminal intent; it is quite another to be filled with total uncertainty on a much larger scale because one expects that there will be many more people in an area.
§ Lord Greaves
I understand that point. But it is also true that most of the dwellings in the areas referred to are already quite close to rights of way. The proposers of the amendment make that very point. They are saying on the one hand that they do not want people to be there at night, and on the other that it does not matter because there are plenty of existing rights of way for them to use. There is an illogicality in that argument which must be faced up to.
We have been told that there are bogs and cliffs in these areas. I do not know about bogs, but climbers seek out cliffs—so that is all right. The point was made by the noble Baroness, Lady Byford. Again, it is an attempt to stop us putting ourselves into positions of 1294 moderate danger with which we can cope by means of our own competence. I reject that as a point of principle.
We have been told that most public parks in towns close at night. I dispute that. I should like to see some statistics. The point was often repeated in another place and was introduced at Second Reading in this House. Since it was first made, I have been doing a quick count in relation to the parks that I have passed. I believe that the true figure for urban parks closed at night is fewer than 20 per cent. Nowadays, most are not closed at night, even though they used to be when I was a child. I grew up in Bradford and I remember the parks there being closed, but that is no longer the case. One reason some are no longer closed is that the railings were taken away during the war to put on the huge scrap-heap with which nothing was done. If people look at the situation today, they will find that most urban parks do not close. In any case, the argument is irrelevant. There is so much difference between most urban parks and the top of Pendle Hill that the argument does not stand up.
If the amendment were to be carried, there would be a great deal of confusion. There will be confusion anyway once the Bill is brought into effect because of different conditions applying on different areas of land. But the question of night access will give rise to huge confusion because it clearly would not exist in relation to Section 15 land, which is already subject to other enactments. For example, the provision would not apply to a great deal of the Lake District; but it would apply to some parts. That is a recipe for chaos. One assumes that the areas of negotiated access in the Peak District would continue as at present: night access is allowed; but that the other part of the Peak District, which one hopes will be opened up, would be subject to night-access restrictions. So there would be a great deal of confusion. That is a nonsense.
§ Lord Rotherwick
I am sorry to interrupt the noble Lord, but surely if the areas of access are marked on maps it would be relatively simple to add information as to whether they were open at night. A clear indication could be given, thus avoiding confusion.
§ Lord Greaves
I am aware that the Countryside Agency is presently discussing the question of exactly what will be put on maps and what will not. I am one of those who hope that as much information and detail as possible will be added to maps. Nevertheless, it would still be confusing if one piece of moorland were to be open to access at night and the next piece of moorland on the same ridge were not open to access at night.
There is concern on the part of those who want more access that compromises have been made on the Bill that have gone too far. This is perhaps the other side of the coin that noble Lords have mentioned. There is a concern that the standard rules set out in the Bill, which will apply to most of the access land covered by its provisions, will come to be the accepted rules for land generally. If the restrictions that are generally put on the new access are considerably greater than those 1295 that apply to access land at present, people are worried that there will inevitably be a loss of existing de facto rights on what has been described as "access by silent consent". There is no doubt that that will happen. The rules will be publicised so greatly that people will come to think that they are the general rules.
Finally, I should like to list some of the organisations that are strongly against the amendment. All the mountain rescue organisations are strongly opposed to the amendment. The Mountain Rescue Council has come out against it and has polled the views of all local mountain rescue groups throughout the country, which are also against it. The National Trust, which has considerable experience of managing access to its own land, is against it. The Guide Association mentioned by the noble Baroness, Lady Carnegy of Lour, is also against it, as is the mountain leadership training board. It is difficult to find anyone who is in favour of it, except those groups that are closely allied to the management of grouse moors. Indeed, the latter is what we are really talking about in this respect.
There may well be some instances where particular moors are so important from a conservation point of view that seasonal restrictions may be needed; for example, local specific restrictions. As I said on Second Reading, there may be small areas of access land in lowland parts of England—perhaps in the South—that are near villages where particular restrictions will be needed to cover local circumstances, whether they are managed by by-laws, regulations or whatever. However, I believe it is quite wrong to highlight those specific cases to try to impose a blanket ban on access at night across the country and then leave it open to kindly landowners to say, "Well, actually, we'll allow you access after all". Landowners generally will apply the rules of the new Bill to their land as if they are the standard rules.
Of course, the pieces land about which we are talking are those whose owners do not allow any access. If existing landowners allowed general access, there would be no need for this Bill. The only reason the Bill is now before us is due to the fact that a large number of what I would call "intransigent landowners" do not at present allow access to their land. Is it likely that contacting them will result in them saying, "Yes, that's okay. Come tonight"? It is most unlikely. Those landowners will use every restrictive detail that there is in the Bill to keep access on their land to the absolute minimum. They will be legally entitled to do so. I suggest that we do not give them any more than they need.
§ 4.45 p.m.
§ Lord Denham
Before the Minister replies, perhaps I could make one quick point. Like the right reverend Prelate the Bishop of Blackburn, I was a member of the Countryside Commission, which was a statutory body set up to advise the Government on the early stages of the generation of this Bill. Like the right reverend Prelate, I am a tremendous supporter of access. Indeed, this is a wonderful new concept and one that 1296 will give people a great deal more freedom. However, it will work only if there is general agreement. To my mind, we would be absolutely mad to let this Bill go through with the one or two small points that really give rise to legitimate concerns on the part of people who will be affected by its provisions.
I hope that the Minister will do his utmost to listen to all the objections on this particular point of night access, as well as considering the various other points regarding dogs and whether people can sue landowners if they damage themselves on their land. Such points are terribly important and concern many people. I trust that the noble Lord, Lord Whitty, will feel free to give way on those issues and so allow the Bill to have the general agreement that will make it really work in the future.
§ Lord Williamson of Horton
Before turning to the substance of the amendment, I cannot forbear commenting on the rather malign sense of humour of the Government in scheduling a night session during which we can "roam", so to speak, over the right to roam during the night hours.
I should like to begin by thanking the noble Baroness, Lady Byford, for tabling this amendment. It is essential for us to take a serious decision on this point. I declare an interest here as a member of one of the regional committees of the National Trust, whose land is open all the time. That seems to work satisfactorily. However, I turn to the substance of the issue. We must bear in mind that we are not interfering with the present position; that is to say, that there is access on footpaths and access by agreement, or tacit agreement, in many parts of the United Kingdom. That is the current situation and that will not be changed.
However, under the proposed situation, new areas will be covered by the Bill. Whatever the scheduling of the debate, we must consider the three possibilities: the first is a blanket ban, or almost a blanket ban, by way of by-laws, and so on; the second proposition—we shall deal with this under another amendment—is that there should be a requirement to have prior agreement; and, thirdly, it is suggested in a further amendment that prior notice should at least be given to the access authority.
It is difficult to envisage a situation where we change the current circumstances in a quite considerable manner without having at least one of those proposals in operation. I hope that the Government will give us a view on those matters. For myself, I understand the point underlying the amendment and have some sympathy with it. However, I believe that it goes too far in terms of a blanket ban. I should prefer a system where prior notice was required to be given to the access authority. I do not share the view that that is impractical. Indeed, it may cause a little trouble for some people but it is certainly practical. If we went forward with this discussion and the debate on the next amendment and the Government said that they would do nothing as regards any of the proposals, it would be a great pity. In my view, that would cause great difficulty. During the course of this and the subsequent 1297 debates, I hope that we can at least have some indication of where the Government feel it would be right to take account of some of the concerns expressed today.
§ Baroness Nicol
I shall be brief. We have already spent over one-and-a-half hours on the amendment. I am quite sure that Members of the Committee will want to take a decision on the issue quite soon. However, there are a few points that I must raise. The noble Baroness, Lady Carnegy of Lour, called in aid the Association of Chief Police Officers, which, she said, supported a ban on night access. My understanding is that the British Mountaineering Council approached the association to find out whether that was its view. After it had inquired into the comments made both in the other place and in this Chamber, ACPO stated that no formal research into the issue had been undertaken, nor had any official statement been made to that effect. The president has now written to the DETR stating that,while ACPO has some sympathy with landowners' concerns, any suggestion of 'a curfew on a general right to roam at night' would not he enforceable or receive public support".That is a very important statement. I hope that noble Lords will not use that particular argument again.
§ Baroness Carnegy of Lour
It was reported to me that it was in sympathy with the amendment, but I do not. of course, deny what the noble Baroness says.
§ Baroness Nicol
The noble Lord, Lord Greaves, has put most of the arguments that I wanted to put and I promise not to repeat them. However, I add to his shopping list. The noble Earl, Lord Peel, homed in on the Ramblers. However, it is not just a case of the Ramblers. A vast number of organisations are involved, most of which have been listed. I am a vice president of the Youth Hostels Association which is dismayed at the prospect of a blanket ban. It points out that many of its hostels are situated in country districts and that walkers travelling between hostels cannot always arrive before dark, especially in winter, nor can they seek permission from the relevant landowner. That is simply not possible. They would be extremely upset if the amendment were accepted.
The Open Spaces Society takes a similar view. Dartmoor National Park emphasises the point that it would be in some difficulty if two different areas of the park had different rights of access. I appreciate the problem. If one is walking on Dartmoor at night, one does not know whether one is moving from land where there is night access to land where there is not. That provision makes no sense.
Someone mentioned the mountain leader training board. That board points out that it needs to train guides and dogs at night. Perhaps that body could negotiate its own access arrangements, but the measure is restrictive and should not be encouraged. I support what others have said: real criminals will not be affected by whether or not there is night access. I understand the point that the noble Lord, Lord 1298 Glentoran, made, but if someone intends to commit crime in a rural area, they will commit it anyway. One cannot propose that as a defence for the amendment. I hope that the amendment will be rejected.
§ Earl Peel
At present if someone working on the land sees someone who, for want of a better term, looks suspicious, at least he or she has the ability to ask that person to return to the footpath. After the Bill becomes law—assuming that night access is accepted—the potential criminal can walk wherever he or she wants and another person cannot ask him or her to return to the footpath. There is a major difference there.
§ Baroness Nicol
I am puzzled at the assumption of some noble Lords opposite—I may have made this point before to the noble Earl—that vast hordes will suddenly rush out to walk in the dark who had never thought of doing so before. I do not think that that will be the case. I believe that those who will walk at night will be dedicated walkers or, if you like, the odd criminal. As I say, I do not think that it will be a case of hordes of people walking at night.
§ Baroness Byford
I thank the noble Baroness for giving way. If one follows her argument, one has to ask why access is being sought in the first place. Obviously we have no idea how many people will make use of night access, but it is illogical to argue that there will not be hordes of people walking at night and therefore there is no need for the amendment.
§ Baroness Nicol
My argument is not at all illogical. I hope that dedicated walkers will have access to more places than is the case now. I am anxious that they should not be inhibited by some of the amendments that are proposed.
Finally, the noble Lord, Lord Marlesford, reprimanded my noble friend on the Front Bench. I had intended to ask the noble Baroness, Lady Byford, why she had decoupled the relevant three amendments—perhaps the noble Baroness will reply to that point when she winds up—as the arguments are almost identical. Is it a case of having two bites at the cherry, or are there fresh arguments to be made?
§ Baroness Byford
I thank the noble Baroness for giving way. She need not wait for me to wind up; indeed, she mentioned the matter to me earlier. 'The reason I asked for the amendments to be decoupled—the Government agreed to that; it was not a case of my saying, "Please do that"—
§ Lord McIntosh of Haringey
The noble Baroness does not understand the position with regard to the grouping of amendments. Amendments are entirely in the hands of those who propose them. It is not up to 1299 the Government to agree or disagree. The fact that the noble Baroness wished to decouple the amendments is sufficient; we have no power to disagree with her.
§ Baroness Byford
I accept that. I am grateful to the noble Lord for correcting me. However, I decoupled the amendments for a reason of principle. Amendment No. 68 concerns night access. I did not want to try to tackle that matter in conjunction with a whole range of other amendments which concern slightly different matters. I do not intend to repeat the speech that I made earlier. I do not think that I would remember what I said anyway. As I say, I did not want to discuss the principle of night access in conjunction with other matters.
§ Baroness Miller of Chilthorne Domer
We live in a 24-hour society. We on these Benches were most surprised to hear the apparent suggestion that the right reverend Prelate did not make some valid points. In this Chamber we have often heard the wish expressed that young people will be employed constructively. I should have thought that the Committee would be impressed by the list of young people's organisations that seek night access. Therefore, I was surprised to hear some almost ridicule the points that the right reverend Prelate made. Young people like to face danger and challenge. If night access encourages them to participate in night hikes—that is certainly the case in Somerset with hikes organised by the brilliant organisation, Young Somerset—that will keep them off the streets, out of the pubs and off the roads. Such activity makes them appreciate teamwork, leadership and the countryside—attributes which noble Lords have in the past demanded in this Chamber time and again. On the issue of crime—
§ Viscount Bledisloe
Does that not demonstrate clearly that plenty of landowners give access to such organisations?
§ Baroness Miller of Chilthorne Domer
I believe that my noble friend Lord Greaves answered that point when he asked why those few landowners who consent to access should always bear the burden. Why should not the burden be spread more widely?
As regards crime, does the Committee believe that the measure we are discussing will be enforceable? If people believe they have access to the countryside and someone reports seeing someone off a footpath two hours after darkness has fallen, will the police want to intervene? I concede that such a situation poses a threat but that applies everywhere in this country. It poses no less of a threat in the isolated hamlet or village than in the middle of access land. I admit that fewer people would be affected by it on access land. However, people who live alone in a small village feel as threatened as those who live in the middle of a moor. I do not believe that the crime argument is a valid one. It is certainly an argument for having more police in rural areas, but it is not an argument for denying access at night.
1300 Cattle and sheep rustling have been mentioned. That is a problem but it is also a huge problem in lowland areas where sheep and cattle are conveniently corralled into fields which makes life much easier for rustlers. I believe that NFU statistics would show that at least an equal, and probably greater, number are rustled from lowland areas than from other areas.
We on these Benches will continue firmly to support night access. As my noble friend said, to remove it would be to remove 50 per cent of access.
§ The Earl of Erroll
We need to apply some common sense here. The previous two speakers mentioned the enforceability of the measure. One will not persuade a policeman to arrest a normal, law-abiding citizen who happens to want to go out for a midnight stroll on the moors. That will not happen. The police will not interfere with people going from youth hostel to youth hostel or bothy on a normal footpath.
However, we need protection against someone casing the joint. If unrestricted access is allowed, someone can sit and observe the property just outside the boundary. People who live in the middle of the land may be tenants; they do not own the rolling acres but perhaps a small area around the property. If one rings the police saying, "I think that these people are suspicious. They have been sitting on my boundary for days", the police will say, "We can do nothing about it. They are not breaking the law". You have to wait until they mug you. That is the difference. It is the point made by the noble Earl, Lord Peel.
If the amendment were passed, one would have the right to question that person's presence. Under the Government's proposals one will not have the ability to do so. No one will interfere with the ordinary individual on the mountain.
I spent 15 years with the Territorial Army wandering around moorland late at night. It is highly inadvisable to wander in such areas if you do not know where you are; sooner or later you will kill yourself. Occasionally school groups lose an individual because he does not know where he is. No one should wander around at night if he does not know where he is. It is highly advisable to stick to the tracks. On military exercises, we tended to do so.
The private householder should have the right to call out the police to protect himself without the police saying that the person involved is not committing an offence, and the householder ignored until it is too late.
§ Earl Peel
I return to the point made by the noble Baroness, Lady Young of Old Scone. I raised the important question of research to establish sufficient facts so that we know that access will not have an impact on ground-nesting birds. I was not certain whether the noble Baroness believed that sufficient research had been undertaken. If she does believe that sufficient research has been done, I should be interested to know where and how. If sufficient research has not been done, does the noble Baroness 1301 agree that it should be? In the mean time if there is insufficient research, does she agree that the precautionary principle should prevail?
§ 5 p.m.
§ The Duke of Montrose
The Committee will be aware that in Denmark there is the same argument about whether there should be free access above the existing footpath networks and at night over private ground. The noble Lord, Lord Greaves, may be interested to know that there is twice as much ground in Denmark which is not part of farming, forestry or the urban environment as in this country. At present one is allowed to be on private ground between 7 a.m. and sunset, on public land and forest at any time, and dogs must be on a lead at all times. The Danish nature council has recently surveyed the population about whether increased access was wanted. The answer it received was that 32 per cent wanted increased access but 59 per cent would rather leave the legislation as it is. I am not aware whether the Government have taken any soundings at that level.
As regards research on the effect of disturbance, I do not know of any research on birds. However, in the Danish context there is research on disturbance to roe deer. I shall refer to that later.
The noble Lord, Lord Taylor of Gryfe, mentioned Ben Lomond and the enjoyment of Loch Lomond. If a mountain requires access from a footpath for more than an hour, a footpath agreement could be put in place to allow people 24-hour access to the mountain.
§ Lord Whitty
First, I commend the noble Baroness, Lady Byford, who, in moving the amendment, indicated that she would not repeat the arguments on other clauses. I hope to follow her example. I regret that some other speakers have not entirely followed her example. Having commended her procedural rectitude, I cannot commend the amendment. Contrary to the noble Lord, Lord Denham, I do not regard this as a small issue for reasons outlined by the noble Lord, Lord Greaves. This is a major part of access to perhaps a relatively small number who seek access. However, for those individuals who wish to visit the remoter areas—they wish to see a sunset or sunrise, watch nocturnal wildlife, or take a walk which cannot be completed during the hours of daylight—access applies as much to them as to the rest of the citizenry.
Perhaps I may say to the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Denham, that the Government have indicated that on certain areas of the Bill we are prepared to make concessions, adjustments in our position, to take account of the points made in the debate and amendments. This is not one of them. We feel strongly that this area should be an essential part of the Bill. When we come to groups of amendments on, for example, dogs and occupier's liability, we shall indicate that some movement from the Government will be forthcoming on Report. On the principle of this amendment, we will not.
1302 We also have to recognise that in the regrouping of the amendments this is the most extreme position— if I may say so without offending the noble Baroness—in that it proposes a blanket and total ban on all night-time access.
The right reverend Prelate, the noble Lord, Lord Greaves, and others have listed a number of organisations which regard this as a vital and important part of the principle of access. I shall not repeat them. There is a whole community out there who wish in a responsible and sensible way to exercise access to the kind of land referred to in the Bill in a way which applies already to many thousands of hectares of land.
I should commend the noble Earl, Lord Peel, on the fact that he is spending all night on his birthday in the House of Lords. The noble Earl asked for more research. Everything benefits from research but we do not need research in this area in the way that we might in others. We have decades of experience over vast areas of the country on how open access works. We have found that it has not created a significant problem. My noble friend Lord Taylor spoke of the Forestry Commission. Others have referred to the National Trust.
§ Lord Whitty
I am perfectly prepared to put what research there is (in the sense that the noble Earl means) in the Library. However, there is no need for the research to which he refers because we have years of experience over decades of how access works in those areas of the National Trust and the Forestry Commission where voluntary access is applied, and countryside where access has applied on a voluntary basis. There have been few problems. In the Light of the experience of those landowners and institutions, why do we regard this extension of access as different?
§ Lord Rotherwick
I am sorry to interrupt the Minister. I had meant to intervene earlier on the forestry issue but it did not seem relevant. However, the noble Lord has referred to it. In my experience when the Forestry Commission moves into grouse moors in particular, all the local environmental birds go. Just as the trees grow and a few more birds come into the area, the commission cuts them down and, again, the birds go. Anyone walking in woodland knows that birds are put off their roost at night by walkers. They become vulnerable on the ground to predators. That reference is not a good example.
§ Lord Whitty
The noble Lord's point about the Forestry Commission relates to forestry management and has nothing to do with access. My noble friend Lord Taylor pointed out that for years and years there has been access night and day on Forestry Commission land, on National Trust land, on Dartmoor, in much of the Lake District and in many other areas that have voluntary access agreements without any of the problems that have been whipped up during the debate.
1303 I have some sympathy with the concerns of people in isolated areas of open countryside and others in rural areas who fear that access will lead to problems of safety and security and to crime. However, decades of experience suggest that those fears are largely unfounded. That is effective, real life, real time, real acreage research. In areas with a statutory right of access, such as the Lake District and parts of Wales, as well as abroad in Scandinavian countries, there have been no serious problems of the kind that have been outlined during the debate.
Of course there are concerns about security and safety, but the Bill provides for them to be met. For example, the right of access does not apply to buildings and their curtilage, to gardens or to parks. The privacy and security of places where people live will in large part be protected. As the noble Baroness, Lady Miller, said, the majority of dwellings in rural and urban areas are already tangential to rights of way or access rights. A generalised accusation that the right will lead to a rise in insecurity and rural crime is seriously misplaced.
Moreover, the Bill provides the means to address many particular problems. Landowners can use their entitlement to close land for 28 days for any reason. The Bill also makes provision for longer closures or restrictions by direction by the countryside agencies for reasons of land management or conservation—I recognise that those reasons will be important in some areas—or for reasons of public safety. That will take account of many of the issues that have been raised today in relation to wildlife and conservation, and safety and security. Particular problems can often be dealt with by applications for restrictions under those provisions or, as my noble friend Lord Dubs said, by by-laws that could be used to restrict the right of access at night time or at any other time. That could apply when there were particular problems with a crime wave or poaching. However, we do not believe that those measures, which may be needed in particular circumstances, should undermine and seriously jeopardise the overall right of access at night.
There is a strange argument that the right of access would make poachers, rustlers and burglars more likely to engage in their nefarious practices. The rise in rural crime in recent years has not needed a right of access. Most of that rural crime occurs in areas that are not subject to the Bill or to access in general. Anyone who went on access land equipped to burgle, rustle or poach would immediately lose that right and would be committing an offence were they to follow that through. As the National Trust recognises, legitimate and responsible access at night might help to deter illegitimate activities, as a larger public presence can cause criminals to look elsewhere for easier pickings.
I am not convinced that any of the arguments that have been put forward on the amendment hold water. Any local circumstances in which those arguments apply can be dealt with by the provisions of the Bill and by-law provisions. I understand the concerns that have been expressed for the safety of walkers and the landlords' concerns, but those risks should not be exaggerated. They apply in current circumstances on 1304 access land and rights of way. Walkers and others who use the right of access have to take responsibility for their own safety.
Is the Minister sure that after dark or if there is mist or fog, none of the young people, who may be inexperienced in roaming the countryside, will ever come to any harm?
§ 5.15 p.m.
No, I clearly cannot guarantee that and neither can anyone else. I am saying that in those areas in which access already applies there has not been a significant problem and there is no reason to believe that there will be in areas that become open to access. I emphasise the clear responsibilities of those who organise activities, particularly for young people, to take safety precautions and to leave messages saying where they will be, as well as to avoid disturbing the countryside, the management of livestock or wildlife. We shall debate those issues later. It is vital that we register the responsibilities of ramblers.
However, the way to do that, as the noble Lord, Lord Greaves, said, is not to cut off 50 per cent of the access provided by the Bill—albeit a much smaller percentage of walkers would be affected. We should recognise that the Bill already makes provision for the serious problems relating to night access. The amendment would severely restrict the Bill in a way that the Government and the Bill's other supporters cannot not accept, so I hope that the Committee will not accept it.
§ Baroness Byford
I thank the Minister for his full response. I am slightly surprised that he said that he could not be persuaded by any of the arguments put forward by your Lordships today. Many purposeful arguments have been put forward for and against the amendment. I said earlier that there would be people who felt strongly on both sides of the argument. That is why I decoupled the amendment.
Before I respond more fully to the debate, I thank the right reverend Prelate the Bishop of Blackburn, who spoke out clearly, as I knew that he would. I understand where he comes from on this and I accept that he holds his views in all sincerity. My husband has been involved for many years in work with young girls and boys with the Church lads' brigade and with the boys' and girls' clubs of Leicestershire. We are aware of the importance that groups play in giving children opportunities that they would not otherwise have. I should like to put that on the record, because I fear that the argument may end up with people on one side saying, "You don't understand" and those on the other side saying, "But we think you're missing the point".
Groups play a tremendously worthwhile role in our community, and long may that continue, but I should say straightaway that they all gain agreement in advance from the people whose land they will be on. I should be surprised, because of the great implications of so doing, if any such groups took out people willy-nilly. I respect the view of the right 1305 reverend Prelate and the noble Lord, Lord Greaves. I do not follow their line of thought right through, but I understand where they come from on this.
Reference has been made to mountaineers who need to stay where they are for safety reasons or because of mist corning down. I hope that your Lordships heard me clearly identify that issue in my opening speech. All sensible owners or managers of land recognise that if there is a problem, the safest thing is to leave people where they are. The amendment does not detract from that argument, and I hope that I have not dismissed it.
The National Trust and other big organisations that allow night-time access have wardens. Many of them employ people whose purpose is to have regard to not only the land that they look after but, I suspect, also the jurisdiction with regard to the people who are on their land. That will not necessarily happen if access is opened up to everyone. As we progress through the Bill, we shall come to amendments which raise the whole issue of wardens. It is stated that "wardens may be appointed". However, at present we do not know what type of financial support will be provided or whether local authorities will have the money available for such a service.
Perhaps I may pick up on the very wise contribution of the noble Baroness, Lady Mallalieu. Like me, she comes from a rural area and knows only too well of the difficulties which exist in some rural areas. Perhaps I may link her point to that of the Minister when he said that it would not make a difference. I believe that it would. At the moment, if one sees people in the countryside during the day or at night, one can challenge them if they are on areas where they are not supposed to be. With open access, there will be a whole range of people, some of whom are there for legitimate purposes such as walking and enjoying the land and others who may be, as the noble Earl, Lord Erroll, suggested, casing the joint to see where they can gain greater access. Clearly, where access is not allowed at present, it is easy to identify when people are on premises that they should not be on. Therefore, I do not believe that the Minister's argument carries weight.
I turn to the contribution made by the noble Viscount, Lord Bledisloe. In my opening speech I did not refer to getting rid of existing permission where landowners or managers come together and allow people on to land. Unless the Minister tells me otherwise, I do not believe that my amendment takes that right away. I am happy to give way but the Minister is shaking his head, so I am correct in my line of thought that my amendment does not affect that right. Therefore, groups and organisations will still be able to enjoy the right, even though we suggest that the Bill should not lead to overall night-time access.
The Minister referred to the fact that there may be areas of open access which groups of people may not want to use. However, the Bill gives unlimited access to everyone. I do not object to that, but one must realise that particularly at night it may not be sensible to allow people to wander because injuries may occur. That is a possibility as there are boggy areas and many 1306 other areas of land of which one needs to have a good understanding. That is an important point to bear in mind.
I apologise to the noble Lord, Lord Taylor of Gryfe. I interrupted him when he spoke, as I was struggling to hear him. I was very glad to hear his contribution. With great authority he referred particularly to the Forestry Commission and its land. My understanding of the Bill is that none of that land is being debated with regard to the question of access land. It is not part of what we are discussing. Unless I am mistaken, I believe that we are discussing mountain, moorland, heath and down. The noble Lord's contribution was well worth while, and this weekend I enjoyed walking through some of the forestry land at Dunwich, which is very beautiful. However, I believe that there is a difference between forestry ground such as that and open moorland, which obviously has its special and different areas.
I shall not reflect fully on the contribution of my noble friend Lord Peel because he speaks with such authority. I believe that it would be unfair to the House if I repeated all his arguments. I hope that, when we debate the matter later—possibly a good deal later—noble Lords will remember that on this occasion he spoke very clearly of his apprehensions from practical knowledge.
In my opening speech I touched on the question of research on ground-nesting birds. I shall perhaps pose the question again before I decide finally what we are going to do. Other noble Lords may also want to return to the subject. I wonder why the RSPB at Minsmere decides to close at nine o'clock at night or at dusk, whichever is earlier, if it is not to protect its wildlife. If it is done in order to protect wildlife, does that argument not apply elsewhere? Neither the Minister nor noble Lords from other Benches have given an answer to the relevant question that I put earlier.
§ Lord Whitty
I apologise to the noble Baroness. She appears to have missed completely the point that we made. In relation to the protection of wildlife and other conservation issues—undoubtedly this would apply to an area such as Minsmere if it were to find itself in the middle of access land—under the Bill it is possible to apply for a restriction. One of the criteria would clearly be conservation. Therefore, the procedure already exists in the Bill.
§ Baroness Byford
I am grateful to the Minister for his contribution. It is not that I have the wrong end of the stick; I am concerned that if we end up with a Bill which leads to many different and varying by-laws, how will an individual walker know when he has moved from one area to another and on to another? I believe that that represents a problem. Unless the mapping is exact and shows that a walker is going from one area to another which has a by-law, I believe that members of the public may have difficulty in knowing where they should be and what restrictions are in force. Perhaps I may return to that matter when we come to debate the issue of mapping.
1307 My noble friend Lord Renton spoke very correctly about the whole issue of rural crime and about young and inexperienced people on open land. Perhaps I may also pick up on the contribution of the noble Lord, Lord Judd, in relation to mists and the safety point of view. I, too, met the British mountaineering group and told them that I was clear that they would not be prosecuted and that there would not be a difficulty in relation to safety issues. It would be unreasonable if they were told that they were committing a criminal offence, and I do not believe that that is what the amendment tries to do.
During the debate it was said, "Don't nanny us". It is quite difficult to know when nannying ends, but I certainly do not come from a party which believes in nannying. However, I believe that there is also a safety issue and the matter of what help should be given to young people. I should hate noble Lords to believe that all will be well. We are not talking about groups of people. We are talking about 45 million adults who, if the Bill passes, will be able to wander freely at night. I suspect that some of them will not be as well briefed as others in knowing exactly where the pitfalls lie.
I fear that I cannot refer to everyone who has contributed to the debate. However, I shall pick up one theme that has been raised by many noble Lords on these and other Benches. The Government used the argument that people will not be able to enjoy seeing lovely sunsets at night. However, they can already do that from existing rights of way and in many other ways where they know that they are safe and secure. My amendment does not take that away; that right still exists. We are talking about the overall freedom to roam across areas. In believe that in some cases those areas need to be examined carefully. I am concerned that the Minister's suggestion that we shall all have local by-laws will be confusing for the public unless the mapping is tied up in a succinct way.
The noble Lord, Lord Whitty, said that he is not prepared to give way to my amendment. I hear what he says.
He spoke also about voluntary groups and the wildlife. I have mentioned the question of organised groups. The noble Lord mentioned curtilage and that the provisions of the Bill would not affect people in their homes. The obvious inference is that the house and garden would not be included. But we have not agreed—although we had a slight run around the issue earlier in Committee—what is included in the term "curtilage". It may well be that somebody's house and garden is very small but the barn next door, which we suggest should be included, is not included.
§ 5.30 p.m.
§ Lord Whitty
My understanding is that a barn is a building. It may not be attached to the curtilage but it is also surrounded by its own curtilage and, therefore, would not be part of access land.
§ Baroness Byford
I am grateful to the Minister. I suspect that we shall return later to that issue. But it is a problem that people may be walking around fairly close to those buildings.
It is difficult to make comparisons. There are those of us who live in larger villages and those who live in very remote parts of the country. One or two Members of Committee have put forward the argument that crime is committed also in the cities and, indeed, in some cases crime rates are higher in the cities.
§ Lord Williams of Elvel
I am grateful to the noble Baroness for giving way. We have spent two and a quarter hours discussing her amendment. We are now listening to a detailed winding-up. As someone with some experience of this House, perhaps I may suggest to the noble Baroness that it would be useful if she could get the business over.
§ Baroness Byford
I bow to the noble Lord. I felt that the Minister was rather brief in his reply to my amendment. At this stage, I hope that the Government will reflect on the major debate that we have had and I beg leave to withdraw the amendment.
§ The Deputy Chairman of Committees (Lord Cocks of Hartcliffe)
Is it your Lordships pleasure that the amendment be withdrawn?
§ The Deputy Chairman of Committees
The Question is that this amendment be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content". I think the Not-Contents have it.
On Question, amendment negatived.
[Amendment No. 69 not moved.]
Lord Glentoran moved Amendment No. 70:
Page 2, line 24, at end insert—
("() before doing so, he informs himself, so far as is reasonably practicable, by means of information provided at designated access points, or otherwise, of any restrictions imposed (under Chapter II) in relation to the land,").
§ The noble Lord said: After that very serious debate, we shall move on to another one which is, I suspect, equally serious. However, I believe that as a result of the previous debate to do with access which we had both on Second Reading and on Amendment No. 9, the Minister has some understanding of this point.
§ I should like to make the point clear at the beginning of today in Committee that my party and I are still behind this Bill. I have said to the Minister that personally, I am now, and always have been, very committed to greater access. But most of our amendments—and these amendments are no exception—are to do with the management of access. Without wishing to make a pun on something else which is somewhere to the forefront of many people's minds, a well-managed project is a good and enjoyable project; a badly-managed project is usually disappointing and not much fun.1309
§ This Bill is an important and exciting project. In most of the amendments that I shall be moving, it is my aim to ask the Government to improve their plans for the management of this access on a countrywide basis. The previous debate has already highlighted the danger of dealing with access on a totally open, nationwide basis. The lands, communities, geography and needs that we are talking about are so different.
After the words "a person entering access land", Amendment No. 70 seeks to insert the words,
before doing so, he informs himself, so far as is reasonably practicable, by means of information provided at designated access points, or otherwise, of any restrictions imposed … in relation to the land".
It is an oft-repeated truism that rights must be matched by responsibilities. If we are to give a public right of access to private land and, more important, a working environment, that access must be responsible and managed. Thus, it is wholly reasonable that those wishing to exercise that right should check the restrictions on the land which they are intending to visit and use the appropriate access points and so on. Unless there is that basic assumption, all the regulations and restrictions in the Bill are largely irrelevant and unenforceable on the ground. We are talking about practical happenings.
§ While the overwhelming majority of walkers will be keen to avoid trespassing and will seek to obtain relevant information on closures and restrictions, others may not. Relevant information can also apply to safety: to the condition of fords, ice and snow and future weather conditions to be expected over a period, particularly if night access is allowed.
§ The amendment would ensure that responsibility to be informed about the land being accessed is promoted in the codes of practice and other publicity information. The access authorities will need to develop comprehensive, up-to-date and readily accessible systems for making available such information; for example, the hill phone system for stalking in Scotland, as noted by the CLA in its briefing, appears to work well.
§ There also need to be designated access points which appear on all Ordnance Survey maps so that numbers can be controlled if necessary, information posted and so on. I shall not dwell on that. We had that discussion previously and I have had further discussions since.
§ The onus must be on those exercising the right and the access authorities. You cannot infringe on a person's right to the free enjoyment and control of his private opportunity and then impose burdens on him without the necessary support or compensation for costs incurred by new obligations. To do so would be a gross attack on property rights and freedom in this country.
§ It is worth noting also that increased access should provide an opportunity to educate people about the countryside, the way of life and the often brutal realities of nature. In doing so, much can be done to bridge the gap between town and country. I hope that we shall later have a greater discussion on education and what the Government propose to do about that 1310 because I believe that it is an absolutely vital and integral part of access. It would be a terrible lost opportunity if the Government did not find ways—and there are plenty of them—of improving the education of people about the countryside.
§ Amendment No. 71 provides that while making access, the rambler or would-be walker does not climb over any wall, fence, hedge or gate. That is a process of encouraging the would-be walker or visitor to use the access points.
§ The maintenance of walls, fences, hedges and gates is a major expense for landowners and managers. Damage to them is hugely expensive. It is important also for the protection and security of livestock. Persons wishing to exercise a right of access under this Bill should not do so, nor should they need to do so, by clambering over walls, fences, hedges or gates with the very real risk of damage to property or, indeed, to themselves, which would inevitably result.
§ This amendment also ties in with two other aspects of the Bill; namely, the occupier's liability and the importance of notification, both of which we shall hear more about later.
§ As the Bill stands, landowners are still Liable for injuries arising from non-natural features. Such a person who suffers an injury from falling off a gate, for example, could bring a case for compensation against the landowner. I shall leave that point because, strictly, it does not apply to this amendment.
§ The second point is that if this Bill is to work in a way that is enforceable and fair, access to the land designated by the Bill needs to be controlled. In using the word "controlled", I mean managed; I do not mean controlled in a policing sense. I mean managed for the benefit of the people who gain access as well as in terms of land management.
§ It is no good people just pulling the car over and heading over the nearest wall or gate, possibly causing damage on the way and then finding that they are in an area where access is restricted or even forbidden at that time for legitimate reasons of land management. Anyone who knows about the country knows that when crossing a locked gate one should cross at the hinge where the gate is the strongest. However, frequently in the countryside one can observe people out for the day crossing a gate at the wrong point or even swinging on and doing gymnastics on a gate.
§ As is the experience in the national parks, the key problem is that it has been seen that, in principle, appropriate restrictions are in place but without adequate wardens it is virtually impossible to catch those breaking the rules. Thus, while the landowner picks up the Bill, those abusing the right of access cannot be held to account. By restricting access to clearly identified points one can ensure that information is efficiently dispersed and incidental damage kept to a minimum. This amendment is tabled to encourage people to do the right thing for themselves as well as in terms of the management of the land. It is probably a different matter if there is no 1311 fencing, as in many parts of moorland countryside, if there are adequate safe places to park the car and if people know exactly where they are.
Amendment No. 72 seeks to add the words:
he enters by means of a designated access point".
Again, that asks for access points. These amendments are about management, communication and education. They point to one of the best ways—I suggest one of the only ways—for communication with the general public to be carried out by access authorities. That communication with the general public is necessary so that they do not break the law, do not enter areas that are restricted at a particular time and do not cause serious damage to wildlife, to the countryside or to themselves. I believe, as an experienced walker and climber, that people who are genuinely interested will come to welcome that kind of regime—rather a strong word—of access points, provided they are clearly marked on the maps that they are able to acquire. I beg to move.
§ 5.45 p.m.
§ Earl Peel
I speak to Amendment No. 70 to which I have put my name. I entirely subscribe to what my noble friend has said. It seems to me that the success or failure of the Bill will depend on a number of key factors. It is absolutely paramount that owners and occupiers have confidence in the by-laws, closure orders and restrictions in general that will be adhered to by those wishing to enter access areas. I am sure that the Minister agrees with that.
It is equally important that visitors have a clear understanding of their rights and where they can go. That will provide them with confidence. There will be nothing worse than people wanting to enjoy the countryside and not being absolutely clear where they can go, what they can do and what the rules and regulations are. These access points are an essential part of making the Bill work and avoiding conflict. At all costs we must endeavour to do that.
I have raised this point a number of times and I have spoken to the Minister about it. Passing this information to the general public is a major difficulty. I go so far as to say that it is a major flaw in the Bill. We talk about getting messages across to people through newspapers, post offices, websites and so on. That is all very well, but many who visit the countryside will be casual, impromptu visitors. They will stop their cars and start to walk. Therefore, their ability to find out about what is taking place on the land will be restricted. We shall have to address the point carefully.
I realise that later in the Bill we shall deal with the codes of guidance. I attach a huge amount of importance to those as well. That is a crucial way of getting information across to the general public and indeed of reminding landowners, farmers and occupiers what their responsibilities will be under the Bill.
So far we have talked about access points, but I should like to refer to them as information points. They will provide a wonderful opportunity for 1312 providing people not just with the rules and regulations of where they can walk, but also with more information about the land itself, such as why it is managed as it is, and will try to explain to them what is happening. My experience of dealing with walkers on my land—I know others share this view—is that the more one explains to people, the more they understand and the less confusion and conflict there is. I attach great importance to the information points.
I agree with the principle set out in Amendment 70. In relation to the wording,so far as is reasonably practicable",I accept that it is a difficult point. I have always understood the law to be that ignorance of the law is no defence, and I am sure that that will be an integral part of the way in which the regulations, particularly under Schedule 2 and Chapter 2, will be formulated. In relation to people informing themselves of the information, I believe that having the words,so far as is reasonably practicable",in the Bill, will help landowners and farmers to deal with what will be the thorny matter of those people who persistently ignore the regulations or do not pay much attention to them. The thrust and the general meaning behind the amendment is obvious. I am sure that the Minister will appreciate us trying to achieve all the matters that have been mentioned.
In principle, I support Amendment No. 71, to which my noble friend Lord Glentoran referred. Clause 2(1)(a) prohibits people from being entitled to enter access land if they damage gates, walls and so on. It seems more sensible to ensure that such incidents do not happen in the first place by preventing anyone climbing any of these particular obstacles. This is a common sense amendment. There is no question but that people will take risks and that if something goes wrong they will hope to get away with it. I need not remind noble Lords that farmers are under enough pressure and they do not want to fix fences and walls after people have clambered over them.
Where I slightly disagree with my noble friend Lord Glentoran on this amendment is that I am not sure that I would use the word "gate" because if a farmer firmly closes a gate which is a genuine way of someone entering an access area, that person would have no option but to climb over the gate. I should be inclined to leave out the word "gate".
Amendment No. 72 is a fairly straightforward measure. People would have to go to designated access points. The Minister has already told me that he will resist that. I understand his reasons for doing so, but the group of amendments gives us an opportunity to discuss the real issue of how to get the message across to the public and of how to avoid conflicts so that people have the confidence to go where they want. I welcome what my noble friend has said.
§ Baroness Masham of Ilion
I should like to ask a question on Amendment No. 71. If someone climbs over a wall, fence, hedge or gate and damages themselves or that wall, fence, hedge or gate, who is liable? I should like a clear answer. It is relevant. Gates 1313 are expensive. Fences and hedges with blackthorns can be extremely dangerous if a person gets pricked. A tetanus vaccination is advisable. Education in these matters therefore is absolutely vital. I hope that the Minister can answer my questions.
§ Viscount Bledisloe
I rise to support Amendments Nos. 70 and 72. I do not speak to Amendment No. 71 which seems to me to be dealing with a totally different topic.
These amendments raise the essential question, to which we have not yet heard an answer, of how the Government think the people who are intending to exercise this right will learn about the specific rules and regulations. For example, how will they know whether the 28-day closure is applicable to a certain piece of land? That point becomes more important when the Minister says in answer to almost every point: "That can be dealt with by a specific application and a specific by-law or order by the Countryside Commission relating to that particular land".
The more rules and regulations there are applying to specific areas of land or periods of time, the more important it is that the walker is aware of them. If one is planning a massive three-day hike across a large stretch of countryside, one may seek prior information from a newspaper or the agency as to where one can find the rules. But if a person is just minded to take a walk for two or three hours, he will not know what those rules are. As I see it, the only way in which those rules can be communicated to that walker is by requiring him to enter the land at a specific point and there erecting a notice board displaying the information, "Area X is subject to so-and-so. This land is closed under the 28-day rule for the month of March", or "This part of the land is closed for the month of March", or, "You may not go to such-and-such an area because special birds nest there".
If people can wander in anywhere, almost everybody will wander in, quite understandably, in ignorance of the rules. They will then be accosted by someone saying, "Did you not know that you cannot come on to this land under the 28-day rule?". The walker will then ask, "Where does it say that? I stopped my car in a lay-by at the side of the road and walked onto this land. How am I to know that?". Of course, if shooting is taking place, it may be dangerous. But, apart from that, the walker will be indignant at being turned away because of a rule about which he had no knowledge.
It is wholly unrealistic of the Government to say that these matters are covered because access can be excluded; that special rules can be obtained to relate to a specific area if it is affected by a particular problem, unless they can come up with a clear and workable method of ensuring that the visitor knows the rules before he enters. I shall be delighted if they can find some other way around this problem. But it is wholly unrealistic to say that walkers can go and look in a register or that the information will be in some special publication. Most people will not have recourse to that.
1314 Also, the Minister cannot keep answering all the points being made by saying, "In special places where that is a problem, you can go off and obtain a special derogation", if he cannot convince us as to how the person seeking to exercise the right is to learn of those special derogations. There may be special cases, as the Minister is keen on saying, where land is not suitable for access only at designated access points, and exceptions can be made for those. But the general principle should be that, when a walker enters the access land, he should walk past a notice board explaining the rules. If the Minister is not going to accept these amendments, perhaps he will tell us how the casual walker will be informed of the rules.
§ The Earl of Caithness
I wonder if it would be helpful to the Minister for me to speak to Amendment No. 78 at this time, in view of the tone of the debate. Would that be helpful?
§ The Earl of Caithness
On the first day of Committee, having degrouped, I shall regroup today. It may be helpful, particularly following what was said by the noble Viscount, Lord Bledisloe.
In the last debate on night access, it struck me that the more we tried to discuss Part I, the more difficult it became until we had discussed Parts II and III. Until we know the details of those sections, we cannot know how the provisions are to be implemented and how they will work. And I am interested in trying to make this Bill work in real life when we have stopped discussing it.
It is essential that those who wish to take advantage of the right of access have a place at which information can be obtained and that it be requisite on them that they go to that spot to obtain that information. The noble Viscount, Lord Bledisloe, is absolutely right. It distressed me also that the Minister has been saying, "Of course, we can make regulations under Part. II of the Bill"; "That can be protected under Part III on the wildlife side". The noble Baroness, Lady Young of Old Scone—in a particularly peely-wally speech for her as head of English Nature (I hope she is a bit more forthcoming in her views when we come to Part III)— said that if there is likely to be damage to birds at night, we can make exceptions for those cases.
Sitting next-door to the noble Baroness, Lady Young of Old Scone, was the noble Baroness, Lady Nicol, who rose a moment later and said, 'That is difficult because in Dartmoor they do not want different areas". Those were two completely different remarks and it indicated to the Committee what a muddle we could get into. These amendments were tabled by my noble friend in an attempt to stop that muddle in real life.
Amendment No. 78 asks that the person who makes use of the access provisions observes the by-laws which the access authority shall prescribe. The noble Baroness, Lady Nicol, is back in her place. It is nice to see her back and discussing wildlife; it is a subject we have discussed often in the past. It is important that the 1315 person who wishes to use the access is aware that there are by-laws and that he or she is required to observe them. The only way that person can be informed that there are by-laws affecting the land is for it to be prescribed on the face of the Bill.
But there is another angle to this; besides providing the certainty, it will provide a mechanism which the police and the courts will readily understand should enforcement action be necessary. Many land managers found in previous cases that the police acted more firmly and more expeditiously when there were by-laws in place than when there were not. It is logical therefore to place a clause on the face of the Bill saying that observance of by-laws is required.
§ Baroness Miller of Chilthorne Domer
I do not mean to speak at length to these amendments. We tabled Amendments Nos. 103 and 124 which address the establishment of a country code and the dissemination of that country code, which we see as being extremely important in making the Bill work. Also, Amendment No. 224 requires local authorities to provide information points. I believe that Amendment No. 71 may be too restrictive. It does not take into account the fact that future technology may lead to a desire to change the access points. One may want the public to enter access land by a different route and new technologies may he very effective in that respect.
While I agree that the public will want to know, and should know, what is happening and where, I do not believe that Amendment No. 72 is the right approach.
§ 6 p.m.
§ Lord Whitty
I am grateful to the noble Lord, Lord Glentoran, for reiterating his support for the principles of the Bill. I have no argument about what he is trying to achieve with the amendment. We need to ensure that people who want to exercise the new right of access do so responsibly and with as full a knowledge as possible.
I know that the Countryside Agency shares that view and is already planning ahead. The National Countryside Access Forum has considered a paper produced by the agency on a framework for providing information on access rights and responsibilities. We are considering a number of ways in which people will be able to find out about access opportunities and restrictions. There are issues relating to the display of and access to information in a locality and there are remote sources of information such as telephone hotlines, websites and so forth.
Effective publicity and education offer the best way of ensuring that people understand and respect the way in which they should treat the land and the way in which the restrictions will operate. However, we shall return to that issue when we debate Amendment No. 103.
Having said that, I do not believe that the terms of the amendment are practicable. I am not convinced that we can enforce a statutory requirement on someone who intends to use the right of access to find 1316 out whether closures or restrictions are in operation. There will be arguments about what is "reasonably practicable" on the ground and subsequently about whether an individual had taken the appropriate steps and how that can be defined.
The responsible majority will be able to find out about closures and restrictions. It is important that those who abuse the right of access recognise that if they breach a restriction they become a trespasser. Ignorance of the restriction is no defence; they will be trespassing. Therefore, while I have sympathy with what is behind the amendment I do not believe that it is enforceable in practice. However, I can reassure the noble Lord that the Government are determined to ensure that arrangements will be put in place to deliver the education, information and publicity about responsibilities and the application of restrictions. We shall develop that in parallel with the mapping process so that it will be in place well before the rights come into force.
In reply to the point raised by the noble Viscount, Lord Bledisloe, we want to see a general right of access but there are occasions when access will need to be restricted. We have the mechanism in the Bill to provide that. Those exceptions will be operated on a consistent basis because they will be either by application to the Countryside Agency or, in some cases, by by-laws which need to be approved. As the rights come into effect there will be a general understanding of the restrictions that may apply. It will then be a question of ensuring that people know where the restrictions apply and at what times.
We are interested in the idea of designated access points. The Countryside Agency is examining that and there will be such points in several areas where access will apply. We want to encourage that and want local access forums to address the issue and try to reach a consensus. We hope that such information will be available to those who want to access the land.
However, Amendment No. 72 moves from encouraging preferred access points to making them mandatory and there we part company. As I said on the first day of Committee—and it was said in another place—we would oppose a requirement for people to use statutory and obligatory access points. The Government's view has not changed. On much access land there will be wide access either from the road or adjoining land which is open statutorily or voluntarily to access. Confining access to designated points will restrict that right. We are not therefore persuaded by Amendment No. 71.
As regards restrictions, I take the point made by the noble Earl, Lord Caithness, because it is relevant to the operation of the system. However, in law, his amendment is not necessary because it will be a criminal offence to breach the by-laws which will be made by the access authority under Clause 17. There will be a penalty of up to £500. Under Schedule 2, any person who commits a criminal offence loses a statutory right of access and therefore the amendments are not necessary. There is no loophole as the Bill has the same effect as would the amendment.
1317 We would also resist Amendment No. 71, which would prevent walkers from climbing over a gate or fence. We are not encouraging people to climb over fences and gates where they exist but the practicality of the proposal will be limited. We have not placed obligations on landowners to keep gates unlocked or to provide suitable means of access. We hope that many landlords do so provide and keep their gates unlocked but we accept that some will not either because they are unwelcoming or because they have a reason to keep them locked. The fact that the Bill does not prevent a landowner from locking the gate or putting a fence across the most obvious means of access means that as regards that side of the argument we are taking a light touch. The landowner is entitled to take such action.
However, there is a balance to be struck. If in this respect we are taking a light touch with the landowner we should also take a light touch with the walker. It is fair that walkers should be able to negotiate a wall or a fence or climb over a locked gate. The Bill contains the safeguard that they may do so only if they do not cause damage. If walkers cause damage they will lose their right of access and may well have committed an offence.
§ Earl Peel
I can see where the Minister is coming from but if a walker climbs over a wall and knocks it over—and I know from experience that the damage can extend for 20 metres—the farmer is left with the job of having to rebuild it. That is a time-consuming business. Surely it would be better to try to prevent people from climbing the wall in the first place rather than placing onerous tasks on others who already have far too much to do.
§ Lord Whitty
It may be that where there is other means of access and egress guidance should state that walkers should not climb over a wall. However, if damage is done that person loses all rights of access. If we were to make it an offence to climb over a locked gate or a wall we must, in order to balance that, put requirements on landowners to ensure alternative access or to keep their gates unlocked. We believe that on both counts it is better to have a light touch and that is the approach that we have adopted. I hope that Members of the Committee will agree that it is a sensible approach.
§ Baroness Masham of Ilton
If somebody falls when climbing over a gate, or gets spiked on a fence, or breaks their leg when climbing over a wall which then collapses, who is liable?
§ Lord Whitty
The question of owner/occupier's liability will be covered later in this debate and I am sure that there will be a wide-ranging debate at that point. Where a person suffers a mishap climbing over a hedge or a natural feature, that is excepted from liability. How other boundary features will be treated is yet for discussion. It would be better to have that debate at a later stage.
§ The Earl of Caithness
I did not follow the Minister in his reply when he said that my Amendment No. 78 was otiose given Clause 2(b). Given that Clause 2(b) is in the Bill, it is logical that my amendment is accepted.
§ The Earl of Caithness
I am referring to Clause 2(1)(b) which says,he observes the general restrictions in Schedule 2 and any other restrictions imposed in relation to the land under Chapter II".If that is relevant to the Bill, surely my amendment is relevant.
§ Lord Whitty
That reference is there because these are new procedures for restrictions. Clearly, the ability to make by-laws applying to land, which is reflected under Clause 17, would be covered by all other law which covers the making of by-laws. Therefore, there is no reason to refer to it at that point.
§ Viscount Bledisloe
Is the Minister aware that he has not dealt with the point about the casual visitor who suddenly decides to take a walk?
The Bill recognises by the 28-day provision that a landowner has a legitimate interest in excluding people for that period of 28 days. His interest is in that exclusion operating, not in people coming on to his land as trespassers and being turned off. If people are not to be required to go to an access point to see the rules when they go on to the land, how on earth is the person who is driving around, thinks it is a nice day for a walk and looks at his map and says, "This is access land" and starts walking on it, expected to find out that that land is closed? How is the landowner to be protected against that person walking across his land even though it is closed for 28 days? It is pie in the sky unless he has to walk past a notice which tells him that the land is "Closed from 1st March to 28th March"?
§ Lord Whitty
I refer to the provisions which the Countryside Agency is working on, and which will be worked up in the local access forum. It would be desirable if there was that information in the locality and if even a casual visitor was aware of it. It is not possible to cover all such contingencies. With respect I do not think that the amendment of the noble Lord, Lord Glentoran, would cover all such contingencies and it would certainly be unenforceable.
What the noble Viscount, Lord Bledisloe, is proposing is that everyone should be confined to a particular access point. That completely misses the: nature of the land that we are talking about, and the nature of the boundaries of that land, and would be a very severe restriction on the right of access.
Clearly, the Government will do their best, local people will do their best, and the countryside agencies will do their best to ensure that that information is as 1319 widely available as possible, but it will not be possible to cover all contingencies, and nor, frankly, would this amendment.
§ 6.15 p.m.
§ Lord Glentoran
I thank the Minister for his patience and for summing up the Government's position. However, I am not happy about it in any way, shape or form.
Regarding Amendment No. 72, I can accept at this stage that that is too clear cut for what the Government want, but I hope that as we progress through Committee and Report stages we shall end up with something very similar to that in terms of the management of access that the Government are going to provide.
In relation to Amendment No. 71, Clause 2(1)(a) virtually says that without actually stating it. Changing the provisions of Clause 2(1)(a) to my amendment would make it more clear, I suggest, to the would-be climber exactly where he stands and what is meant. As has been pointed out by the noble Viscount, Lord Bledisloe, Clause 2(1)(a) has no impact because someone could climb a fence, knock a wall down, and disappear into the mist and until somebody tells him the poor farmer may not know that his sheep have run a mile or two down the road. The contents of this Bill will be well known and well understood by those who go wandering. This change is not a big deal but it will significantly help to give comfort and to let both sides of the argument know what is meant. I do not like to take both sides because if I do, I am on both sides. This provision would let the would-be rambler know what is meant and what his duties are.
The Minister has already accepted, as I understand it, that there is a responsibility on the would-be rambler, if I can use that word very broadly, to understand the country codes and what he is doing. He should take the trouble to find out where he is.
I am interested in the contribution by the noble Baroness, Lady Miller, about access to future technology. With respect, I suspect that for the general masses such technology is a lot of years down the road. There is a serious role, as we have discussed before—it is not directly relevant to this amendment—for the Government in terms of getting their act together with regard to how they are going to inform the general public and where the money is going to come from for it. I read a piece this morning from an association of local authorities which said that the Government's estimates of the costs of this Bill are way out. Clarification is required on that point.
Before deciding what to do as regards these amendments, whether to press them or to beg leave to withdraw them, I ask the Minister, in relation to Amendment No. 70, whether he will give the House an undertaking that before Report stage he will table an amendment of his own which does something similar: which puts on the face of the Bill the need for the would-be rambler to be acquainted with and to 1320 understand the privileges, rules and regulations pertaining to the area that he is going to use for access. Would the Minister like to respond to that?
§ Lord Whitty
I thought I would be able to respond to that positively, but the noble Lord then said that would-be ramblers should have a legal responsibility—which is effectively restating what was in his amendment—to take reasonable steps. The practicality of enforcing that is difficult to see. I indicated earlier that in terms of information and publicity the Government would take into account what was said in this debate and what may well be said in the debate on Amendment No. 103, in the name of the noble Baroness, Lady Miller of Chilthorne Domer. We shall no doubt return to that on Report. I cannot give an undertaking in the precise terms or phraseology for which the noble Lord has asked.
§ Lord Glentoran
I do believe that my Amendment No. 70 is critical as a base to the functioning of this Bill and therefore I should like to test the opinion of the Committee.
§ 6.20 p.m.
§ On Question, Whether the said amendment (No. 70) shall be agreed to?
§ Their Lordships divided: Contents, 80; Not-Contents, 150.1322
|Division No. 1|
|Alton of Liverpool, L.||Mackay of Ardbrecknish, L.|
|Arran, E.||Mancroft, L.|
|Biffen, L.||Marlesford, L.|
|Bledisloe, V.||Masham of Ilton, B.|
|Boardman, L.||Mayhew of Twysden, L.|
|Bridgeman, V.||Molyneaux of Killead, L.|
|Bridges, L.||Monson, L.|
|Brougham and Vaux, L.||Montagu of Beaulieu, L.|
|Burnham, L.||Montrose, D.|
|Byford, B.||Moran, L.|
|Caithness, E.||Moynihan, L.|
|Carnarvon, E.||Northbourne, L.|
|Carnegy of Lour, B.||Northbrook, L.|
|Clark of Kempston, L.||Northesk, E.|
|Craigavon, V.||Norton of Louth, L.|
|Darcy de Knayth, B.||O'Cathain, B.|
|Denham, L.||Onslow, E.|
|Dixon-Smith, L.||Oxfuird, V.|
|Eden of Winton, L.||Palmer, L.|
|Ferrers, E.||Park of Monmouth, B.|
|Fookes, B.||Peel, E.|
|Gardner of Parkes, B.||Pilkington of Oxenford, L.|
|Glentoran, L.||Plumb, L.|
|Goschen, V.||Prior, L.|
|Gray of Contin, L.||Rawlinson of Ewell, L.|
|Greenway, L.||Reay, L.|
|Hanson, L.||Renton, L.|
|Hayhoe, L.||Roberts of Conwy, L.|
|Henley, L.||Rotherwick, L.|
|Hooper, B.||Ryder of Wensum, L.|
|Jopling, L.||St.John of Bletso, L.|
|Kimball, L.||Selborne, E.|
|Luke, L.||Shaw of Northstead, L.|
|Lyell, L.||Shrewsbury, E.|
|McConnell, L.||Simon of Glaisdale, L.|
|Soulsby of Swaffham Prior, L.||Weatherill, L.|
|Stewartby, L.||Wilberforce, L.|
|Stodart of Leaston, L.||Wilcox, B.|
|Thomas of Gwydir, L.||Williamson of Horton, L.|
|Trumpington, B.||Willoughby de Broke, L.|
|Acton, L.||Holme of Cheltenham, L.|
|Addington, L.||Hooson, L.|
|Ahmed, L.||Howie of Troon, L.|
|Allenby of Megiddo, V.||Hoyle, L.|
|Alli, L.||Hughes of Woodside, L.|
|Amos, B.||Hunt of Chesterton, L.|
|Andrews, B.||Hunt of Kings Heath, L.|
|Ashley of Stoke, L.||Irvine of Lairg, L. (Lord Chancellor)|
|Bach, L.||Islwyn, L.|
|Barnett, L.||Jay of Paddington, B. (Lord Privy Seal)|
|Bassam of Brighton, L.|
|Beaumont of Whitley, L.||Jenkins of Putney, L.|
|Berkeley, L.||Judd, L.|
|Bernstein of Craigweil, L.||Kennedy of The Shaws, B.|
|Billingham, B.||Kirkhill, L.|
|Blackburn, Bp.||Layard, L.|
|Blackstone, B.||Lea of Crondall, L.|
|Blease, L.||Lipsey, L.|
|Borrie, L.||Lockwood, B.|
|Bragg, L.||Lofthouse of Pontefract, L.|
|Brennan, L.||Longford, E.|
|Brookman, L.||McCarthy, L.|
|Brooks of Tremorfa, L.||Macdonald of Tradeston, L.|
|Burlison, L.||McIntosh of Haringey, L.|
|Carter, L.||Mackenzie of Framwellgate, L.|
|Christopher, L.||Mackie of Benshie, L.|
|Clarke of Hampstead, L.||Mallalieu, B.|
|Clinton-Davis, L.||Mar and Kellie, E.|
|Cocks of Hartcliffe, L.||Mason of Barnsley, L.|
|Crawley, B.||Massey of Darwen, B.|
|Currie of Marylebone, L.||Miller of Chilthorne Domer, B.|
|David, B.||Milner of Leeds, L.|
|Davies of Oldham, L.||Mitchell, L.|
|Desai, L.||Molloy, L.|
|Dholakia, L.||Nicol, B.|
|Donoughue, L.||Oakeshott of Seagrove Bay, L.|
|Dormand of Easington, L.||Orme, L.|
|Dubs, L.||Peston, L.|
|Elder, L.||Pitkeathley, B.|
|Evans of Parkside, L.||Plant of Highfield, L.|
|Evans of Temple Guiting, L.||Prys-Davies, L.|
|Falconer of Thoroton, L.||Ramsay of Cartvale, B.|
|Farrington of Ribbleton, B.||Randall of St. Budeaux, L.|
|Faulkner of Worcester, L.||Rea, L.|
|Filkin, L.||Rendell of Babergh, B.|
|Fitt, L.||Rennard, L.|
|Fyfe of Fairfield, L.||Richardson of Calow, B.|
|Gale, B.||Rodgers of Quarry Bank, L.|
|Gibson of Market Rasen, B.||Rogers of Riverside, L.|
|Gilbert, L.||Sawyer, L.|
|Gladwin of Clee, L.||Scotland of Asthal, B.|
|Goldsmith, L.||Scott of Needham Market, B.|
|Gordon of Strathblane, L.||Serota, B.|
|Goudie, B.||Sharp of Guildford, B.|
|Gould of Potternewton, B.||Shore of Stepney, L.|
|Graham of Edmonton, L.||Shutt of Greetland, L.|
|Greaves, L.||Simon, V.|
|Grenfell, L.||Smith of Clifton, L.|
|Hamwee, B.||Smith of Gilmorehill, B.|
|Harris of Greenwich, L.||Smith of Leigh, L.|
|Harris of Haringey, L.||Stone of Blackheath, L.|
|Harris of Richmond, B.||Strabolgj, L.|
|Harrison, L.||Taylor of Blackburn, L.|
|Haskel, L.||Taylor of Gryfe, L.|
|Hayman. B.||Thornton, B.|
|Hilton of Eggardon, B.||Tomlinson, L.|
|Hollis of Heigham, B.||Tordoff, L.|
|Turnberg, L.||Wedderburn of Charlton, L.|
|Turner of Camden, B.||Whitaker, B.|
|Uddin, B.||Whitty, L.|
|Varley, L.||Wilkins, B.|
|Walker of Doncaster, L.||Williams of Elvel, L.|
|Walmsley, B.||Williams of Mostyn, L.|
|Warner, L.||Woolmer of Leeds, L.|
|Warwick of Undercliffe, B.||Young of Old Scone, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.30 p.m.
§ [Amendments Nos. 71 and 72 not moved.]
Lord Glentoran moved Amendment No. 73:
Page 2, line 27, after ("2") insert—save where such restrictions are in conflict with existing public rights,").
§ The noble Lord said: In moving Amendment No. 73, I wish to speak also to Amendments Nos. 74 and 205. The group of amendments concerns urban common land. I hope the Minister will find them to be helpful amendments. Amendment No. 73 seeks to tidy up some minor conflicts. It follows Amendment No. 66, which was debated on the previous Committee day. The amendment makes it absolutely clear that the provisions of the Bill are in addition to all pre-existing rights of access, agreements about land use and access for local clubs, activity groups and the like.
§ Amendment No. 74 seeks to clarify the Bill. It ensures that this part of the Bill is consistent with the terminology of the rest of the Bill and is thus capable of cross-referencing without the danger of a legal lacuna being discovered once the Bill becomes law. Noble Lords will know that that is not my language.
§ Amendment No. 205 is designed to apply the provisions of the Bill to urban commons in so far as they only relate to walkers. These are commons which at the time of the Law of Property Act 1925 lay within the boundaries of urban district councils. Somewhat bizarrely, substantial areas of common land in the Lake District and Snowdonia are urban commons. There is already a right of access on them for walkers, and also, it is presumed, for horses.
§ We think that it is important that the management regime which can be applied to walkers on all other common land should apply equally to walkers on urban commons. In many cases urban commons and other commons, or other mountain and moor, intermingle or abut each other.
§ It would be strange if such areas, which are often used in the same way as adjacent land, or with similar conservation or heritage value, could not benefit from the same provisions for closing and restricting access as adjacent land. It would also be illogical and confusing to have one set of rules on one extensive piece of moorland and another set of rules on an equally extensive piece of moorland next door. One can think of the confusion for owners and walkers and—not least—the problems for wardens in policing the new right in such areas.1323
§ The exclusion of Section 193 commons from the Bill is all the more surprising, given the fact that the Law of Property Act 1925 expressly provides that the provisions relating to access to the land involved can be overridden by subsequent statutes relating to access. It states that,
"such rights of access shall be subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw, regulation or order made thereunder or under any other statutory authority".
§ We invite the Government to explain why Section 193 commons should not also be brought within the scope of the Bill, at least in so far as concerns access for walkers. There is no desire to remove any higher rights—for example, access on horses. The amendment makes specific provision to safeguard such rights while bringing access to walkers within the scope of the Bill.
§ Amendment No. 205 involves one amendment to Clause 2 and one amendment to Clause 15. So far as concerns walkers, that would bring urban commons within the scope of the Bill by removing the current exemption for them under Clause 15. The general restrictions listed in Schedule 2, and the closure regime and so on under Chapter II, could then be applied to the land, save where they are in conflict with the existing public rights—for example, to ride horses. Accordingly, walkers would be subject to all the restrictions applying on other open country—a modern management regime to tackle modern problems—without interfering with the implied rights of horse riders on urban commons.
§ A good deal of that argument has already come before the Committee this afternoon in a different context. We wish to avoid having different regimes for different areas of land, especially when the parcels of land abut one another or they lead into each other. I beg to move.
§ Lord Jopling
When the Minister comes to reply, I hope he will expand a little on the comments made by my noble friend Lord Glentoran. The reason I should like him to expand on that is that the remarks of my noble friend took me back a good many years to the passage of the Commons Registration Act 1965. I was heavily involved in that legislation because my former constituency in another place—the historic county of Westmorland—contained more common land than any other constituency in the country.
I should like clarification on the matter of commons because my recollection is that in those days there were rather strange arrangements whereby in two boroughs in my old constituency—namely, Windermere and Ambleside—there were urban district councils rather than rural district councils. It was for that reason that there was in Windermere Urban District Council a large amount of common land. In the area based on Ambleside, which if I recall was called the Lakes Urban District Council, there were a large number of urban commons. Can the Minister confirm that my recollection about that is correct?
1324 We are not talking about small parcels of land; we are talking about huge parcels of land. To anyone rowing or sailing a boat on Lake Windermere and looking north or east, more or less everything he sees consists of what used to be common land attached to Windermere Urban District Council and the Lakes Urban District Council. I hope the Minister will make clear in his winding-up speech that we are not talking about anything comparable to urban parks. We are talking about vast tracts of open land in the Lake District in particular.
As I recall, there were other urban district councils in the Lake District. I cannot recall what and where they were. All I know is that those were the only two in my constituency.
§ Lord McIntosh of Haringey
Perhaps I may begin by confirming that the noble Lord, Lord Jopling, is entirely right. His memory goes back to the 1965 Act. I wish it had gone back to the 1925 Act. If it had, and if he had been a member of the government at the time, he would recall that the government chickened out during the passage of that Act. It had been intended that the Law of Property Act should apply to all commons, whether urban or rural. But the difficulty for the Government in 1925 was such that they left it at urban commons and did not proceed to the rest of it. For the past 75 years we have lived with the consequences. In response to the amendments, I shall show that the consequences have not been all that dire. However, the noble Lord, Lord Jopling, is right. "Urban commons" is an Orwellian title. It applies to the common land within urban district councils, which includes enormous tracts of open land, particularly in the Lake District and in Snowdonia.
I admire the noble Lord, Lord Glentoran, and his advisers for their tidy minds, but I really do not think that we need to be quite as tidy in dealing with this part of the Bill. He is right to say that access land under the Bill excludes excepted land, which we have debated at some length, and also those types of land referred to in Clause 15(1) of the Bill, the first of which, which would be omitted by Amendment No. 205, is urban commons under Section 193 of the Law of Property Act 1925. Under the 1925 Act, the urban commons have statutory access rights. Although they vary, they are in general less restrictive than the access rights provided under the Bill. They are subject to reduced opportunities for closure and provide wider rights of recreation than the more modest right of access afforded by the Bill. For example, they generally include access for horse riders. Amendment No. 205 would bring the management of such land within the scope of Chapter II of the Bill, so it would be the Bill's provision for access that would apply.
I see the argument for uniformity, but land which has been open for three-quarters of a century would become subject to widespread closure or restriction for the first time in the absence of any evidence that the existing access regimes have caused problems for land owners or others interested in the land. So we see no reason to replace themwith the more extensive system of restriction and closure set out in the Bill. Were we 1325 to follow that approach, there would be considerable difficulty in providing satisfactory arrangements for existing rights to co-exist with the new statutory right and in providing for the management of higher rights in addition to the rights of walkers. If landlords of urban commons wish to comply with the provisions of the Bill, they can do so. Much of the access land under Section 193 of the 1925 Act is subject to revocable deeds of dedication, so owners who wish to adopt the access regime set out in the Bill may do so.
There is one exception to my argument against uniformity and greater restriction. I refer to conservation. Conservationists have told us that the 1925 Act did not allow for access to Section 193 commons to be restricted in the interests of nature conservation. We have provided in Schedule 4 for an amendment of Section 193(1) of the 1925 Act so that limitations or conditions may be imposed by the Secretary of State or the National Assembly for Wales for just that purpose.
The mapping process will ensure that walkers have certainty that, where land is shown on the map as open country or registered common land, then, subject to restrictions or exclusions in force under Chapter II, they will have a statutory right of access on foot. Those who wish to inquire more closely—this brings us back to our debate on the previous group of amendments—or perhaps who live locally, will be able to find out whether they have wider rights under an earlier enactment.
The amendment will do nothing to improve clarity or certainty for walkers but will only increase the likelihood that their rights will be diminished where access becomes excluded or restricted under Chapter II. Mr James Paice told the Committee considering the Bill in another place:I certainly do not want existing rights extinguished".— [Official Report, Commons Standing Committee B, 4/4/00; col. 148.]The amendments would do just that.
Amendment No. 74 makes a minor change which reflects a misunderstanding. The amendment attempts to make it clear that users should observe any exclusions as well as any restrictions. It is thought that there is a loophole. But Clause 2(2) provides that the right of access set out in subsection (1) is subject to the provisions of Chapter II. If access is excluded under Chapter II, the right of access will not apply. If the right of access cannot be exercised at all, the question of observing any limits cannot arise.
§ Lord Glentoran
I thank the Minister for his response to the amendments and in principle accept most of his arguments, particularly as my honourable friend in another place, Mr Paice, made the point so clearly. The noble Lord referred to uniformity. I trust that noble Lords on the Government Front Bench will stick to that argument and will not wish to have it one way today and another way on a future occasion, which is what I think may be happening already. With regard to Amendment No. 74 and the legal lacuna, 1326 I accept the Minister's word. I am sure that he has investigated the matter and is right. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 74 not moved.]
§ 6.45 p.m.
Baroness Byford moved Amendment No. 75:
Page 2, line 28, at end insert (", and
(c) he enters the land not earlier than one hour before sunrise on any day and leaves the land not later than one hour after sunset on the same day,").
§ The noble Baroness said: I shall speak briefly to the amendment because we had a broader debate on the issue earlier today. I shall speak also to Amendment No. 77, which stands in the name of my noble friends Lord Caithness and Lord Northbrook. I hope that the Government will listen to the argument about limiting the time to one hour before sunrise and one hour after sunset. I hope we are agreed that walkers, particularly if they have dogs with them, can unwittingly disturb ground-roosting birds at night. If birds leave their nests, especially at night, eggs may die through cold or be lost through predators such as foxes, which are more active at night. Given the importance of much access land for wildlife—some 70 per cent is designated as being of SSSI interest—it is essential that these risks are minimised.
§ I appeal to the Minister to look at the precautionary approach with regard to the amendments and to consider the position of wildlife. I hope that the amendment will be looked on favourably by the Government. I beg to move.
§ The Earl of Caithness
I rise to support my noble friend. Her amendment is similar to Amendment No. 77 standing in my name and that of my noble friend Lord Northbrook. In answering Amendment No. 68, the noble Lord, Lord Whitty, said that a huge constituency out there wanted a right to roam. There is also a large constituency of people who are directly affected by the Bill and by the provision on night access. They are extremely frightened by the proposal and are greatly concerned about its possible effect.
This part of the Bill is divisive. We are considering two very different types of landowners whose land will be affected. We have heard already about the National Trust. It is an extremely wealthy body which can afford to employ wardens and thus manage night access, as well as to take the appropriate preventive measures. Furthermore, it has enough land to channel people into areas where the least damage will be done to land, wildlife and, indeed, to walkers themselves. However, a huge raft of small landowners will be put to considerable extra expense. They do not have the privilege of vast resources and they will find it hard to afford to take such measures. Clarity is therefore of vital importance here.
1327 If blanket access is to be made available at all times, small landowners will be put to considerable extra expense and extra worry. However, if permitted access is clearly defined, it would relieve smaller occupiers of a considerable burden.
§ Lord Whitty
I find myself in the position of a Minister who may have upset his officials. I see that page 2 of my speech says, in effect, "You're on your own now". The official notes state that nothing new can be said in response to these amendments. I think that we covered this ground rather fully during the course of the earlier debate. I was not convinced then, but I shall say, in response to the noble Earl, that I do recognise the anxieties that have been expressed. Having said that, I believe those anxieties to be ill founded, given the experience of areas which do not belong to the National Trust but where voluntary access arrangements, including night-time access, are in place. No significant increase in crime has been noted and the security of remote dwellings has not been seriously endangered.
I do not believe that shifting the hours of access to one hour on either side of dawn and dusk would in principle make a significant difference to the arguments. In response to the noble Baroness and the point she made about the availability of restrictions when considering matters of nature conservation, those restrictions would also apply in this context. I hope, therefore, that, as happened earlier today, the Committee will not agree to this amendment.
§ Earl Ferrers
I find myself amazed at the intransigence of the Government over this point. Perhaps the Minister could explain something to me. What is the force of the argument which dictates that the public should be allowed to roam at will at night over land which does not belong to them and thus put at risk other people? What is the position for the folk who live in such areas? What will be the position for all the birds and beasts? Indeed, who would want to walk around at night?
I believe that a balance needs to be struck between the people who wish to walk around at night and the damage that may well be done. I say again that I find it extraordinary to see the Government issuing a piece of paper that will allow people to walk about over other people's land all through the night. I do not see any point in it and I do not see from where the demand will come.
§ Baroness Nicol
Before my noble friend rises to make his response, perhaps I may point out that the noble Earl was not present in the Chamber for the earlier debate. We spent two and a quarter hours debating exactly who such people were and why they should or should not be able to walk at night. A fair decision was reached by the Committee and I think it would be tedious to ask my noble friend to take another two and a quarter hours to explain the same points.
§ Earl Ferrers
The noble Baroness is perfectly correct. I was not able to attend the earlier debates of the Committee and I apologise to noble Lords for that.
I did not ask the noble Lord to again rehearse the whole argument. I asked simply whether he would be kind enough to explain a point that I did not understand. What is the objective here? Given the noble Lord's capacity to be brief, I believe that he would be able to do that rather well.
§ Lord Whitty
When we debated Amendment No. 68, a number of noble Lords pointed out—rather more eloquently than I—the position as regards ramblers, naturalists, scout groups, those engaged in various forms of training and those who simply wish to be able to go out and look at the stars. We have received a wide range of representations from interested groups, organisations and individuals stating that night access forms an essential part of extending the right of access to the most beautiful areas of our countryside.
The noble Earl may not have heard the comment made earlier by the noble Lord, Lord Greaves; namely, that if we were to impose restrictions on access at night, then that access would be cut by something in the order of 50 per cent. It is clear that far fewer people will seek to take advantage of night access, but nevertheless many groups and organisations have expressed their interest. We believe that their rights should be safeguarded subject, of course, to the ability to apply for restrictions in particularly sensitive or unsafe areas. I covered the detail of such restrictions at some length on the earlier occasion. I hope that that provides a sufficient response to the question put by the noble Earl.
§ Earl Peel
I believe that the Minister stressed the need to put in place in certain areas restriction orders for nature conservation reasons. That is quite right. I presume that the Government intend to encourage restriction orders to apply also on land where there might be a threat to the economic value.
§ Lord Whitty
That would depend on what the noble Earl means when he refers to "economic value". It will be possible to impose restrictions for particular activities such as shooting or other events that might take place on the land. However, if the noble Earl is referring to a general assessment of the economic effect, then no provision is in place.
The Countryside Agency will look at the broad picture and may well take into account certain economic effects. However, the restrictions will apply primarily for reasons of land management, conservation and safety rather than for any generalised economic claim. I am not entirely clear what is the thinking that lies behind the noble Earl's question, other than reference to restrictions that would apply to particular events.
§ Earl Peel
One example that immediately comes to mind is game interests. Those could be seriously undermined by night access, in particular if dogs are involved. I hope that the Countryside Agency will take 1329 such circumstances into account when making decisions on whether closure orders would be appropriate on such land.
§ Lord Whitty
Representations can be made to the Countryside Agency on the basis that land management would clearly involve game management. However, I do not think that more general claims on the grounds of economic interests would be entertained.
§ Baroness Byford
I thank the Minister for his response. Many hundreds of people who live in country areas will be disappointed by the fact that the Government do not feel able to move in any way on the question of night-time access, which was a point debated at length before my noble friend Lord Ferrers was able to join us. For that reason, I shall not return to the arguments.
Having said that, I should point out to the Minister that I believe that the message being sent out to country people is one that indicates that the Government clearly do not understand. They are not willing to take on board the serious representations that have been made and debated in the Committee. Even on the issue of wildlife protection, while the Minister has acknowledged that problems could arise, on the figures that I have been given—70 per cent of the areas under debate already contain SSSIs—it seems ridiculous not to consider the amendment for such areas. If the more limited night-time restrictions could apply in certain areas, people would be allowed some time to watch the sunrise or the sunset and would still be able to leave the area during the hours of darkness.
Unfortunately we appear to be hitting against a solid block with the Government on this issue. They are not prepared to consider the real issues here. Although I know that the Minister is genuine in his belief that the access must be made available for everyone, we need to balance that against the needs of people who live and work in the countryside. I fear that that balance has not been struck. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 7 p.m.
Lord Roberts of Conwy moved Amendment No. 76:
Page 2, line 28, at end insert (", and
() if he intends to enter or remain on the land later than one hour after sunset on any day, he gives prior notice of that intention to the access authority").
§ The noble Lord said: The purpose of Amendment No. 76, to which my noble friend Lord Peel has also put his name, is to ensure that a person who intends to enter or remain on access land later than an hour after sunset gives prior notice to the access authority. It is a simple requirement, dictated predominantly by a concern for people's safety.
§ Everyone who speaks to the Bill inevitably brings his or her personal experience of the countryside into the argument. There is nothing wrong with that. Indeed, 1330 there is everything right with it. My home for the past 30 years has been on the eastern edge of the Snowdonia National Park. We have an uninterrupted view of Taly Fan mountain, 2,000 feet high, and of the higher mountains beyond which comprise the Snowdon range. The topmost 30 feet of that mountain will probably become access land subject to the fast track procedure.
§ I am obviously familiar with the life of the area, with the farming community, with others who live and work in the park and around its edges, with the visitors who come to walk the hills, and with what happens in the area. What I do not hear by word of mouth or on local radio, I can read about in the Liverpool Daily Post or in our local weeklies. I say this in order that the Committee will know that my approach to the Bill is that of one who knows something about mountain land—the mountain element of access land—rather than about heath, moorland or other categories, which I leave to better informed people.
§ One of the commonest happenings in Snowdonia is that some unfortunate person—usually young and from the urban areas of Merseyside, Greater Manchester or the Midlands—wanders off the beaten track, even on Snowdon itself, or is caught in a thick mist, and falls hundreds of feet, sometimes fatally. One of the 50 or so mountain rescue teams in the area is called out and when the victim is found a helicopter from RAF Valley, Anglesey, takes the casualty to the district general hospital, Ysbyty Gwynedd at Bangor.
Unfortunately, that is a regular and somewhat trying experience that has worried many of us who live in the area for years. My local North Wales newspaper, The Weekly News, reported a typical accident case on 13th July—just before we were due to go into Committee on the Bill—under the headline "Helicopter called to peak casualty". It was a typical occurrence. The article stated:
A young woman had to be rescued after falling and breaking her arm while climbing Snowdon at the weekend.
The woman, thought to be from the Nottingham area, was 2,000 feet up the peak when the accident happened on Saturday afternoon.
A Sea King helicopter from RAF Valley was used in the rescue, working in conjunction with members of the Llanberis mountain rescue team".
§ That was a minor accident as mountain accidents go. It happened in broad daylight and in a very well known location. Nevertheless, it involved a call out to a rescue team and a Sea King helicopter from RAF Valley on a Saturday afternoon.
§ During the Recess I made some inquiries with the North Wales police, who told me that there were 287 accidents in the mountains between April last year and April this year. The hospital gave me figures for the last calendar year—153 calls for mountain rescue 1331 services for 265 people involved in accidents, five of them fatal. That is quite a heavy toll. As I have said, it worries a great many of us who live in the area.
§ Lord Roberts of Conwy
I am talking about the mountainous area of Snowdonia. These accidents happened with the situation as it is and in broad daylight. When the Bill comes into operation there will be a different situation, as I am about to explain.
With more extensive access to mountain land, such accidents are bound to increase in numbers and frequency. That is obvious. The areas to be searched will be more extensive; so will the timescale with night-time access; and so of course will the demand for rescue teams and helicopter pilots. Their work will be more difficult at night. We are subject already to almost daily helicopter surveillance in our Conwy Valley, and I suspect that if they go searching for people at night the place will look like a scene from the Vietnam war film "Apocalypse Now".
The purpose of my amendment is abundantly clear.
§ Lord Greaves
Can the noble Lord tell us what happens at the moment to people who are involved in an accident at night? There are no night restrictions at all at the moment on all the land which is available for accessing Snowdonia.
§ Lord Roberts of Conwy
I did not obtain a detailed analysis of the accident figures I have given, which differed slightly between the police and the hospital services. The noble Lord should remember that, yes, we are talking about the Snowdonia National Park and the area round and about it, but there will be considerable additional areas declared to be access land. Much of that will be mountain land even in that particular area, let alone the rest of Wales and the United Kingdom. I have taken Snowdonia, which is an area that I know, as an example of the kind of thing that is happening now in a given area.
As I said, the purpose of my amendment is abundantly clear: it seeks to ensure the safety of those who walk the hills at night, so that if they do lose their way and an accident occurs, their rescuers will know at least roughly where to look for them because they will have given prior notice of their whereabouts to the access authority. The amendment of the noble Viscount, Lord Bledisloe, which is to be discussed together with my amendment, refers to landowners as well.
The action by the access authority of registering those who are about to go into the hills at night will cost money—I am sure of that—but surely it is better to spend some money than to lose young lives, as so often happens now.
1332 Many more arguments can be adduced in favour of the amendment in relation to the security of property, livestock and so on—rural crime is on the increase, as we all know—but it is the personal safety of the individual climber/walker that is my paramount concern. To my mind, the argument for the amendment is insuperable. With the extension of access land and times of visiting, accidents will inevitably increase.
I do not want to be too dramatic about it, but, as the Bill stands, it seems to me that we are sending many young people to almost certain death in the Snowdonia area. That cannot be right. I hope that the Minister in his response will not say that the lost walker can use his mobile phone or that the issue can be left to local by-laws and regulations. The mountains are unsafe places now, especially for the inexperienced, ill equipped and ill clad youngsters who venture into them, as the accident toll demonstrates all too clearly. It is all very well to say that they take a risk, but we hear locally about the people who have taken that risk and have fallen and had severe accidents of one kind or another.
My amendment would not deny access to the various people who have a particular desire or reason for wanting to be in the hills after dark. All it does it to ensure that their presence and whereabouts are known to the access authority. It is to be hoped that the access authority will tell the landowners if there are going to be people wandering about their property at night, to spare them the worry and concern and to allow them to warn people that there may be the odd bull in a particular field and that he is not as contented as some might expect him to be in a herd of 20 or 30 cattle. I mention that because a friend of mine only just made it to his Land Rover the other day when he was chased by one of his own bulls which was clearly in a discontented mood. What happens to a farmer who knows his territory can easily happen to a walker crossing a field.
I urge the Government to take the matter of night access seriously—certainly as seriously as they took the subject of gallops when it was raised by the noble Lord, Lord Donoughue. It was the safety argument that turned the Minister's mind so far as gallops were concerned. I urge him to consider the safety aspect of night access, particularly to mountain land. I beg to move.
§ Viscount Bledisloe
Amendment No. 79 in my name is grouped with this amendment, so perhaps I may explain it to the Committee. My amendment assumes that there is to be a right of night access and basically allows for its exercise. However, before someone seeks to exercise it, the amendment requires that person to seek consent to so doing. I stress that the consent can be refused only for good reasons, which may be those mentioned earlier when we debated night access generally: for example, there may be birds nesting, lambing may be taking place, or sheep may have been penned prior to going to market. It would also give the landowner or the person whose consent is requested an opportunity to say: yes, you can go onto my land 1333 generally, but not this bit, because on this bit there is some particular activity going on; we have just dug a lot of holes; or, it is particularly dangerous because of the very wet conditions. That enables one to say yes in general but not in a particular area—but only for good reasons.
I reassure the noble Lord, Lord Dubs, that under the amendment there is no problem for the person who wants to exercise his right of night access as regards knowing to whom he goes for consent. If he does not know who the landowner is or cannot get hold of the landowner, he can go to the access authority. The access authority can then pass the message on to the owner but so far as the walker is concerned consent from the access authority suffices.
The amendment applies only to a person who intends to enter and remain on the land after sunset. Therefore, it in no way impinges on the person who, for example, inadvertently finds himself delayed or fog-bound and who therefore decides that it is safer to sit and wait for night to pass. It applies only to someone who consciously intends, when he sets forth, to be there for longer than an hour after sunset.
The great advantages of the proposal are, first, that it gives the landowner or the access authority the opportunity to say: no, you cannot do that at this moment, because it is just when the birds are all nesting or hatching, or it is just when the farmer has got all his sheep together and by walking across the land at night you will undo the good work that he has done for two days; or, do not go to that particular part because it is very dangerous and there has been a great deal of rain, and so on.
The amendment also means—this is important in relation to the points made earlier by the noble Baronesses, Lady Mallalieu and Lady Carnegy—that the owner will know that people are coming. Therefore, he will not he frightened. He will not have the need to wake up and chase them unnecessarily. He will not have the problem of people wandering round and have no idea whether they are legitimate walkers or people with evil intent. I stress that the consent will have to be given unless there is very good reason for not so doing.
The noble Lord may point out that the amendment does not state who is to decide whether the withholding of consent is unreasonable. The noble Lord nods, so I believe that I have anticipated part of his brief. In many cases, as for example in that of assignment in landlord and tenant law, that is decided by the court. I accept that it might be a rather lengthy procedure for someone who wanted to walk. It would perhaps be more sensible if the access authority or the Countryside Agency were to be given the power to determine whether or not the withholding of consent was unreasonable. It is not my intention to move the amendment at this stage; however, I urge the Government to consider whether—possibly redrafted to cover that technical point—the amendment might provide a "halfway house" to allay at least some of the fears expressed earlier in Committee but without depriving people of the right to walk at night where there is no reason for them not to do so.
§ 7.15 p.m.
§ The Lord Bishop of Blackburn
I believe that both the amendments have a good purpose and they enable us to pay tribute to the mountain rescue and moorland rescue services. I should like to disabuse those who think that I am concerned only with rural Surrey. That was 30 or more years ago. The diocese of Blackburn has much moorland and I was brought up on the moorland on the other side of the Pennines — something about which I do not talk very often these days.
However, the mechanics of the proposal trouble me slightly. How will this actually be done? Having been a member of the Countryside Commission, as the noble Lord, Lord Denham, reminded the Committee, and now of the Countryside Agency and the National Access Forum, I have been through these issues over and again almost to the point of tedium. There are no easy answers to some of these questions. We ought to be honest and admit that. When we talk about the access authority and about informing the landowner, issues arise as to how that will be done.
With reference to the amendment moved by the noble Lord, Lord Roberts of Conwy, surely it relates to what is presently accepted as good practice as set out in all the codes one can think of to do with mountaineering and moorland and country walking. All the green guides state that people must inform their relatives, their friends, their youth hostel or those at their hotel that they are setting out into quasi-dangerous territory or areas that can become so if the mist comes down.
If we add this provision to inform access authorities and landowners, my fear is that people will become scared of doing that and will simply go. They will not want to go through the bureaucratic process of contacting the access agency and they will not know who the landowner is. Similarly, they will not know in advance—say, three weeks ahead—that they intend to do so. So they will not be in touch with the agency, which can then inform the landowner.
I cannot speak for the Countryside Agency;indeed, it is not the practice of Members of this Chamber to do so. However, if the agency does not get its act together with regard to the publicity and use this opportunity to spread the word about all kinds of walking in the countryside, it will not, in my view, be doing its duty. There is an opportunity here for the present good guidance and practice to get a lift because of the very nature of our discussion.
I turn to the amendment tabled by the noble Viscount, Lord Bledisloe, that he does not intend to move. Do landowners really want people telephoning them at all hours of the day or night, especially at the popular times of the year when such activity will take place in the "honeypot" areas? I do not know whether you can have honeypot areas in mountains, because that expression really refers to the rather smart villages, but noble Lords know what I mean. If this amendment is passed, I wonder whether landowners will thank us for the incursion into their privacy. I have the kind of job where people often telephone me. They 1335 know that they can get the bishop on a Saturday when the staff has gone home. So I know what that can mean.
I wish to make a serious point. The issue of safety is important, but the ensuing publicity may well deal with that, as may the suggested provisions. I seriously ask the landowners' representatives in this Chamber whether they really want the inconvenience of every would-be walker who will remain on the hill after dark ringing them up and asking them such questions. Another way must be found to inform people about the closure of land or the possible dangers involved. I question the value of these amendments, although I believe the purpose behind them is a good one.
§ Lord Dubs
Perhaps I may make some comments about mountain safety. I do so because the noble Lord, Lord Roberts, spent most of his speech talking about it. If one goes into hilly, mountain areas, my understanding is that the advice one receives is to leave a note at the hotel or with one's friends as to the route that one is following and the expected time of one's return. That is the sensible thing to do. Then, if one has not returned at the expected time, the hotel or one's friends can alert the mountain rescue people accordingly. Those people will want to know the route followed and will then do what they can. Of course, if it is dark, it will be difficult to use helicopters in a search to find people.
The noble Lord, Lord Roberts, said that people should give prior notice. But the problem with that suggestion is that there will be no follow-up. How could an access authority know whether or not such people had returned from their walk? The key to safety is knowing whether people are missing, not whether they have set out on a walk. I am afraid that the noble Lord's proposition will not add to the safety of people climbing in Snowdonia, or in other areas.
Moreover, I understand that the access authority would be either the national park or the local authority responsible for highways. They are often large bodies and there is not much fine-tuning there. I do not know how many mountain rescue teams that there are in the Lake District, but there are quite a few. The noble Lord mentioned the large number of them in Snowdonia. If the national park or the county council is to be so informed, how can they follow up such information? For example, will Cumbria County Council employ night staff who will be waiting to hear whether or not people have returned? Frankly, this does not make any sense in terms of safety. To my mind, the argument does not carry any weight.
I very much share the argument advanced by the right reverend Prelate about giving prior notice. The noble Viscount, Lord Bledisloe, said that there is an alternative here: one can either inform the owner of the land or the access authority. One would have a choice as between informing the landowner or the access authority. Again, that would not add much to the safety angle. I know that that was not the noble Viscount's specific argument, but a dual system would not improve safety. Indeed, it would simply add to the 1336 existing difficulties. One would have to telephone a distant local authority or the landowner, who may or may not be identified—and there may be several owners. One may wish to follow a route but half a dozen landowners may be involved. Should one telephone all of them? No. In such a case, one would telephone the access authority. The person there would probably say, "Thank you very much for telling us, but so what?"
What would happen if I were to telephone the national parks authority in, say, Kendal, and say, "This is what I am setting out to do tomorrow"? It does not make sense—
§ Viscount Bledisloe
I thank the noble Lord for giving way. One has to get the authority's consent. If the access authority is available, that means that the owner can say, "Look, if anyone asks for consent during the next fortnight, don't let them go there because all my sheep will be penned on the land", or he may have dug many holes in the area, and so on.
In response to the point made by the right reverend Prelate, if landowners do not want to be bothered about this they can give a general consent by way of the modern media about which those on the Liberal Democrat Benches are so keen. They can just say, "Don't bother to ask me". They could also say to the access authority, "Feel free to give permission". It would enable them, first, to put down a marker if they are worried about something in particular; and, secondly, if they want to be so informed, they can ask the access authority to let them know about such requests.
§ Lord Dubs
I do not wish to pursue this argument in detail. It seems to me to be an extremely cumbersome and bureaucratic approach. I understand why the noble Viscount does not intend to move his amendment. Indeed, the proposal is so bureaucratic that I believe people will either not walk or will just ignore the requirement.
Finally, Amendment No. 79 refers to whether the individual "intends" to stay out an hour after sunset. However, much of this discussion is about the unintended consequence of a day's walk when one happens to be delayed by weather, or whatever, and one finds oneself being out later than was intended. I do not envisage that the hillsides will be full of hundreds of people walking about late at night. But there will be those who want to see a particularly beautiful sunset—and there are some spectacular sunsets to be seen from some hilltops—or those delayed by bad weather, possibly by mist, who are doing the prudent thing by proceeding more slowly and carefully and thereby arriving late. Those people cannot give notice because they had not intended to arrive late. I am totally unpersuaded by both amendments.
§ Lord Judd
I should like to make one point to further the argument advanced by my noble friend Lord Dubs. It seems to me that these amendments could lead to a lawyer's paradise. Someone may wish to go 1337 on a walk in certain land. However, he may decide that he is not going to worry about all the rigmarole spelt out in these amendments and just go ahead with his walk. How would anyone ever be able to prove that that person had intended to do so if he said, when questioned, that for one reason or another he found himself in a difficult situation and had no option? I believe that lawyers could argue such a case for ever.
§ Lord Jopling
I listened to the first debate this afternoon, as well as this debate and the previous one. All of them deal with the business of night access. The Minister rejected the blanket ban regarding no access at all, but I thought I detected in the words that he used some sympathy with the considerable anxieties that have been expressed. However, if that is not the case, I hope that he will tell us so when he concludes this debate.
If I am not wrong and the Minister has some sympathy for the points made, for example, by the noble Baroness, Lady Mallalieu, I wonder whether we can find some sort of a compromise that would go some way towards meeting the concerns raised by noble Lords on all sides of the Committee, as well as taking into account the interests of the users of the countryside—the walkers, the ramblers, the climbers, the naturalists and the sun-gazers. Indeed, I wonder whether we are getting a little closer to that compromise with these two amendments.
If we are moving towards a compromise, I suspect that neither of the two amendments will be suitable. However, it would not be a bad idea before Report stage to start to prepare some kind of a compromise which might be acceptable to all sides of the Chamber.
Unfortunately neither of the amendments we are discussing deals with the situation of people who want to go on to open land before sunrise. The previous amendments covered that point, but these two do not. If these two amendments were to form the basis of a compromise and were extended to deal with the hour before sunrise, that might be helpful.
With regard to the matter of giving notice, I was struck by the words of the right reverend Prelate who expressed his admiration—this has been sadly lacking in our debates—for the mountain rescue services. I have had close connections with voluntary mountain rescue teams, who are nearly always strapped for cash but who do an absolutely wonderful job rescuing people from fells and mountains around the country. I believe that my noble friend Lord Roberts mentioned the problems that result from people who go out on hills and mountains improperly equipped, particularly in terms of footwear. That is a complaint of the mountain rescue teams. They also complain of false alarms in that often they are called out only to find the following day that the people for whom they searched were safely tucked up in bed and had given no notice that they had returned safely.
Mountain rescue teams continually seek to encourage everyone who walks in the uplands and on open land to give notice of where they intend to go, where they intend to start from and where they intend 1338 to end up at night. If we seek to encourage everyone to give such notice—I believe that the right reverend Prelate endorsed this concept—it seems to me that it is not a huge hardship to ask people who intend to walk at night also to give that notice. As a general principle, I think that people who intend to walk at night should give notice of that. The Committee may also think it right that people who intend to walk at night should give prior notice of that to someone. But how we tackle that matter seems to be a sticking point at the moment.
I hope that I may make a suggestion which has occurred to me recently. It is surely not impossible for people who intend to walk on open land at night not necessarily to obtain prior consent, as mentioned in Amendment No. 79, but to give prior notice, as mentioned in Amendment No. 76. If they were to do that by leaving a message on an answering machine in the relevant authority's office, others would not be irritated by constant phone calls. One could dial a certain number to leave a message relating to a certain area of open country. Thus a record would be available to be consulted by anyone who was nervous or anxious about people roaming about in the middle of the night. Such anxious or nervous people could use a gadget—I am sure this will be familiar to the Committee —which enables one to access messages that have been left on a certain number. Modern information technology enables nervous people, who are anxious about whether certain people are meant to be in upland areas, to telephone a number to find out who has left a message to say that they intend to be out all night.
I apologise if I have spoken for rather a long time. I plead with the Minister to say that he is willing to seek compromises and ways to relieve the genuine anxieties which have been expressed on all sides of the Chamber with regard to people who wish to roam on open land during the hours of darkness. If he does not intend to accept a compromise, I hope that he will say so now and we shall not waste our time looking for one. I believe that a compromise can be achieved. I hope that the Minister will tell us that he is sympathetic to that.
§ 7.30 p.m.
§ Lord Monson
I am sure that both the Government and the Liberal Democrat Benches will readily acknowledge that Amendments Nos. 76 and 79 are a great deal more modest than the earlier amendments relating to night time access and therefore in principle are much more acceptable to both of them. However, as the noble Lord, Lord Jopling, has pointed out, they are technically flawed. After all, the calendar day starts immediately after midnight. Therefore anyone who enters land at one minute past midnight would be totally free from any of the restrictions that either of the amendments imposes. I am sure that that is not the intention of either the noble Lord, Lord Roberts, or the noble Viscount, Lord Bledisloe. The only people to be caught would be those entering between one hour after sunset and midnight, but not anyone entering after midnight. I suggest, therefore, that they may like to tidy up the amendments before Report and submit revised amendments at that stage.
§ Baroness Gale
I believe that these two amendments would make matters extremely difficult for walkers. How can a person who is planning a walk determine what time it will end? Amendment No. 76, which stands in the name of the noble Lord, Lord Roberts, mentions giving prior notice. To whom is that notice to be given? How will the walker have all the relevant information available?
If people are to give notice of their walk, they will have to plan far ahead. A walker may give that notice, but what check is there that he or she has returned safely? Are we to have a system of "clocking on", as it were, when we leave on a walk and "clocking off" when we return? It is rather pointless for someone to give notice if we do not know whether he or she has returned safely. I make my next point with the greatest respect to the noble Lord, Lord Roberts. He said that, as the Bill stands, we are sending young people to their deaths. I believe that that is a great exaggeration. The Bill does not have that intention, even without the amendments.
A walker will have to be extremely well informed. He must know exactly where to report. It will make it difficult for people to go on spontaneous walks. The amendments would be impractical. It would be difficult for walkers or organisations to find out who owns the land on which they will be walking. On a nice day, one could not get up in the morning and say, "I want to go for a nice walk somewhere" because notice has to be given. That does not make sense to me.
§ Lord Mancroft
I am grateful to the noble Baroness for giving way. The amendments relate to night access, not walks during the day. The noble Baroness used the word "spontaneous". I do not believe that many people will spontaneously walk up Snowdon late at night; they will do a little more planning than that. If the amendment discouraged people from doing so, it would be a good thing. I would not want too many spontaneous mountain climbers at night. In dangerous areas such as moorland I hope that walkers would do a little more forward planning. They should know when they are leaving, from where and when they will return. I do not think that the noble Baroness's arguments are valid.
§ Baroness Gale
By "spontaneous" walks I refer to those pleasant days when one feels energetic and wants to go on a walk. The walk may take longer than anticipated and may not end before nightfall. It would be spontaneous rather than a planned walk.
On my many walks I am never certain what time each walk will end. It can be delayed for many reasons. One might have a comfort stop, a stop for lunch or a rest. For many reasons the walk may not end when anticipated. One might worry about taking a spontaneous walk if one has not asked for consent, and has not planned far enough ahead. The amendments are impractical. They would make walks difficult for the public and organisations as regards ownership of the land.
1340 The amendment would be a bureaucratic nightmare. What staff will there be to listen to the answering machines? What will they do with that information? If people do not check in on their return the information will be of no use.
There would no longer be the joy of walking which many people experience. In its place there will be the worry of completing the walk before nightfall or of having to know the owner of every piece of land and to plan the walk far ahead. It would be impossible for all walkers to be that well informed. The amendment is impractical and difficult to implement.
The 24-hour society is available for everyone except, if the amendments are agreed, those who wish to walk on access land at night.
§ Lord Rotherwick
My noble friend Lord Jopling urged the Minister to come to a compromise which will give walkers little problem in gaining access to land at night while giving assurance and comfort to those who live in the area. The right reverend Prelate was right to say that most landowners would not want to be pestered by people telling them that they were coming on to their land. I can think of precedents which work. During straw-burning time we had to notify our local authorities. Many hundreds of farmers did so. The calls were taken by the local authority.
A night walk is more arduous and difficult than a day walk. Some of those which I undertook in the army were a delight and some were not quite so delightful. There has to be some planning. One has an idea of where one is going and how long it will take and one has a map. It is not difficult to mark an area on a map with a footnote stating the access authority. One can then let that authority know of the walk. After all, if the walker has a problem he expects the rescue services to put immense effort into collecting him from that land. With modern technology, it is surely not too much to ask walkers to give a minute or two of their time to let people know that they will be on this land at night.
With modern technology it would not be difficult to put this information on a website. People would have easy access to that information. It seems good sense and good practice. I hope that we can find a compromise.
§ Lord Marlesford
One of the main arguments deployed against extending access at night related to the hazards involved. The Government have accepted that argument. I was struck by the remarks of my noble friend Lord Jopling. We seem now to be discussing the hazards of night access of any kind anywhere.
The amendments are not practical. However, the Government should consider the need for advice for night access generally which would apply to the areas where night access already exists. Perhaps they should consider some extension of the country code. It might be said that no one will take notice of it. It could be provided by statute that those who ignore the advice and get into difficulties may have to make a 1341 contribution to the costs involved in getting them out of difficulties; and those who ignore the advice and injure themselves will not be able to claim against anyone for the injuries. The people who ignore it and damage other people's property—I refer to the noble Viscount's sheep—will have a specific liability.
I hope that we shall consider some means of making the extension of night access safer than at present.
§ Baroness Masham of Ilton
I only wanted to make a brief comment. Perhaps the noble Earl, Lord Peel, can answer me. I am concerned about the amendments because they refer to activities "after sunset". I live in North Yorkshire, where there has hardly been any sun this summer. It has poured with rain almost every day, making life even more difficult for the farmers. Would it not be more accurate for the amendments to refer to "darkness" or "dusk"?
I also join the right reverend Prelate the Bishop of Blackburn and the noble Lord, Lord Jopling, in paying tribute to the mountain rescue teams and add to that a tribute to the dog search teams. Dogs sometimes find people on mountains when humans fail. They do a remarkable job and they, too, are voluntary.
§ Earl Peel
I know from many years of experience that it is sometimes extremely difficult to answer the questions put by the noble Baroness, Lady Masham of Ilton. I live very close to her and I sympathise with her about the lack of sunshine that we have had during the summer. She has made a useful point, but I think that any sensible person would understand the amendments. I am sure that she agrees.
I put my name to the amendment tabled by my noble friend Lord Roberts, but I should also like to speak to Amendment No. 79 in the name of the noble Viscount, Lord Bledisloe. I fully accept that neither is technically practical, but, as my noble friend, Lord Jopling, has said, they have given us an opportunity to try to find a compromise on the thorny issue of night-time access.
I think that the noble Viscount's amendment is rather better than the one that I put my name to because it would at least involve the owner of the land. However, both amendments have a problem, because neither would oblige the access authority to inform the owner that someone wanted to go on to their land. The owner or farmer is the person most interested in what is going on on their patch. That is why I am so keen on the principles behind the amendments.
We have already debated the issue at length. I acknowledge that the amendments do not deal with the thorny question of livestock and wildlife, which we have already discussed. I was interested to hear the Minister say, in response to my earlier question, that he did not think that economic factors would be taken 1342 into consideration when closure orders were given. I can only assume that the Government put more importance on nature conservation than on the economic well-being of those who live and work in the hills. Nobody is keener on nature conservation than I am, but we need parity. Ignoring the economic importance of an area at the expense of nature conservation would be a very grave mistake.
The noble Lord, Lord Judd, said that the amendments were a lawyer's paradise. I suggest that the whole Bill will be a lawyer's paradise. The right reverend Prelate the Bishop of Blackburn said that there were no easy answers. He is right. There are no easy answers to the issues raised by the amendments and the Minister made it clear that there are no easy answers to the problems of access points and access areas.
Once again, that shows the fundamental faults in the Bill. If we cannot try to resolve them in Committee, I do not know when we will. Again, I go back to the plea of my noble friend Lord Jopling for us to try to find a sensible compromise.
Various suggestions have been put forward, including an answer service, which would be perfectly acceptable. The noble Lord, Lord Dubs, talked about people being disturbed, but the system could be voluntary. Anyone who did not want to be on the information service would not have to be, but some of the landowners, farmers, occupiers or tenants who are responsible for managing a piece of land that will be subjected to access under the Bill may wish to be on it, so it should be available to them.
The Bill puts tremendous stress on land managers. Having put such additional burdens on them during the day, it is unjust to expect them to have to consicler all the difficulties at night as well.
I accept that the amendments are by no means perfect, but they give us an opportunity to work towards a compromise. I sincerely hope that the Minister will look towards that as a means of getting out of a difficult and thorny situation.
§ Lord Molyneaux of Killead
In the early stages of the debate, I had feared that we might be ignoring the dangers to walkers and—perhaps more importantly—to the rescuers. I, too, pay tribute to the mountain rescue people and admire their courage. I sympathise with their relatives, as, I hope, do some irresponsible walkers and mountaineers when their rescuers are killed in the execution of what they regard as their duty.
The noble Lord, Lord Glentoran, will be well aware that I am closely involved with Royal Air Force and Army Air Corps helicopter crews. I know that he understands that night flying in helicopters is very hazardous at the best of times, even when they adhere to mapped routes that have been cleared with air traffic control. It is 100 times more dangerous when they have to go off the familiar beaten track, particularly at night and in misty conditions, to search over uneven ground, forests and highlands. There 1343 must be an obligation on all concerned to ensure that proper precautions are taken and that all the issues are weighed carefully in the balance.
I have good reason to believe that the publicity generated by the debates on the Bill will stimulate a great deal of interest and activity. We all approve of that, but sometimes it will create interest among people with no experience. Before they wander off into the wilderness, particularly in dark, misty conditions, I hope that they will not forget the rescuers and their families.
§ Lord Greaves
I have three quick points to make. First, I find it a little surprising that we have already spent almost an hour—by the end of the debate we will have spent more than an hour—discussing two amendments that even their proposers admit are defective and deal with an issue that we have already covered in great detail this afternoon.
I have news for the noble Lord, Lord Roberts. If he were to decide one clear dry evening next summer to walk up Snowdon, where he lives—he could even go up on the railway and wait for a while—he might well be astonished by the number of people he found on the summit waiting for the dawn.
I have been on the summit of Snowdon at night twice. On both occasions—and, I think, on every other occasion that I have been on mountain summits in this country in the middle of the night—my decision to go there was spontaneous. Most people who walk and climb on the mountains of this country do not do so in an organised way—a lot of them do, but most do not. Most go in small groups with their friends as individuals. They wait for the weather and, if they happen to be in the right place at the right time and the weather is right, they "go for it". They may go to the summit of Snowdon only to spend a nice time with bottles of wine and so on. Some people may even be waiting for the first train down.
That is what happens, and the point that I want to make relates to many of the concerns that have been raised regarding the wording of the Bill and the amendments. The noble Lords who put forward those concerns appear to have very little experience or knowledge of what people do when they walk and climb on the hills and mountains. Noble Lords are fantasizing about all kinds of things which they assume people get up to which bear very little relation to the truth.
My third point relates to the need to telephone people in order to go to particular places on the hills of this country. Some moorlands are closed to access but limited concessionary access to particular crags is negotiated, usually by the British Mountaineering Council. Climbers can climb those crags even though perhaps no general right of access exists to the moorland massif of which they form a part. There are a number of such areas. Several of us have experience of going through that process. It is not the landowners whom one telephones; it is usually one of their tenants whom they have nominated for the privilege. When 1344 such people are telephoned at perhaps eight o'clock on a bright, sunny August Sunday morning by the eighth or ninth person who asks whether he can climb on their crag, they are not very pleased. The idea that people should telephone individuals or that such individuals should be notified of all the people who may want to go—
§ 8 p.m.
§ Lord Greaves
I accept that the system could be voluntary. However, it is being suggested that it should be organised either through access authorities or, as other noble Lords have said, through county councils. That seems to me to be an extraordinarily prolific job-creation scheme, spending a lot of public money to no good end.
§ Lord Willoughby de Broke
I rise briefly to support what my noble friend Lord Jopling said about building on the amendments of the noble Viscount, Lord Bledisloe. It seems to me to be sensible to do so, if only to inject into the Bill a sense of proportionality which so far seems to have been lacking.
In his reply to the debate on the first amendment today, the Minister acknowledged that there was a problem. He said that we were not going to compromise but he accepted that there is a problem. I believe that we are presented with the opportunity to add something to what he said then. Although, as other noble Lords said, these amendments are not absolutely perfectly drafted, they are in the spirit of adding something which will allay the concerns of landowners. The noble Baroness, Lady Mallalieu, spoke about that and the noble Viscount, Lord Bledisloe, did so, too, very well.
My noble friend Lord Peel is right that this matter need not be cumbersome. If we are in a 24-hour world, we are also in an IT world where there are faxes, mobile telephones, Internet access and other means of communicating with various people who, as my noble friend said, wish to be communicated with. That is my point in relation to something on which we should be able to build. We should allow landowners and land managers who want to know what is going on to know who will be on their land. These amendments, suitably modified, will give them that chance to be so informed. Therefore, when the Minister comes to reply, I very much hope that to some extent he will accept the spirit of the amendments.
§ Lord Northbrook
I respond briefly to the right reverend Prelate the Bishop of Blackburn, who I see is not in his place. In relation to Amendment No. 79, I declare an interest as a landowner. I am sure that I speak for many landowners who would be very happy to receive prior notice, particularly via an 1345 answerphone which could also be accessed remotely, making use of modern technology, if someone wished to remain on the relevant land later than one hour after sunset. I should also like to see Amendment No. 79 improved to include one hour before sunrise.
With regard to the comments by the noble Baroness, Lady Masham, about the timing of sunset, perhaps she could obtain the chart, referred to by the noble Lord, Lord Greaves, relating to the hours of sunrise and sunset if it were available nationally.
The mild inconvenience of being given notice is more than outweighed by the peace of mind of knowing of a person's presence. I believe that it would also be a good idea to give notice of a walker's presence to the local authorities.
§ Lord Glentoran
I want to make a final point to the Minister that night access is a serious matter not only for landowners but for anyone who chooses to go walkabout on access areas: on moorland, heath and down. I say that in modesty, suggesting that I probably spend as much time or more moving around on mountains, moors, heaths, downs and water, to say nothing of woods and jungles, as anyone in this House. Even an expert knows that those are not the types of place where one goes for a walk lightly. I would not want the right to roam anywhere at night to be taken in a light-hearted way.
It is a serious business to go on to moorland at night. It does not matter if it is only a field or somewhere such as Salisbury Plain. In that type of place, a broken ankle, a hard frost or many other terrible things may happen. People go on to such land now—for example, in the Peak District—ill-equipped, ill-shod and ignorant of what they are doing. I hope that somehow through this Bill the Government will find a way to compromise on night access so that the seriousness of night access is demonstrated to the general public.
§ Lord Whitty
Of course I accept that night access is an important issue. I believe that in the past few hours we have given the subject its due importance. It is important for safety reasons and for the sense of security of the people who live and work on the land which is subject to access. However, it is also important as part of the right to access.
People talk about being prepared to compromise. I am a reasonable bloke.
§ Lord Whitty
Thank you, but rather wider support would have been appreciated! I shall look at sensible solutions. I am not in the business of compromise on the basis of these two approaches. In particular, I am not in the business of compromise on the second of the two amendments—Amendment No. 79. That amendment makes it absolutely clear that we are giving landowners a right of veto over the exercise of the right of access. Yes, ostensibly they must behave reasonably. But who is to judge whether they are behaving reasonably, by what 1346 mechanism and in what timescale to make that right of access a reality? That is not a sensible approach, quite apart from the technical problems regarding how it would be carried out. Therefore, I oppose wholeheartedly Amendment No. 79 and believe that it would be a serious encroachment on the rights under the Bill.
In relation to Amendment No. 76, I say two things to the noble Lord, Lord Roberts. First, I appreciated his graphic description of the situation in Snowdonia. As the noble Lord, Lord Greaves, said, Snowdonia is already open to access night and day. The Bill will not alter that position. Secondly, in the light of the support for the Mountain Rescue Service, which I totally endorse—the noble Lord, Lord Molyneaux, and others added to the view of the noble Lord, Lord Roberts, on that matter—the letter which I have received from the Mountain Rescue Council states quite clearly:The Mountain Rescue Council is totally opposed to any restriction of access to the countryside during the hours of darkness".That is for its own purposes in terms of training and for the purposes of rescue. It has made its position clear. So we should not be praying in aid the mountain rescue people as regards the restrictions which are proposed in these two amendments.
On the face of it, one may ask what is wrong with prior notification. But as my noble friends Lord Dubs and Lady Gale asked, how would that work in practice? Who would know the landowners? How would you know who the landowners were? If you notified the access authority, what would the access authority do with that information? The willingness of landowners to participate, voluntarily or otherwise, makes the proposal subject to some difficulties in any event.
The fact is that what is suggested here neither protects the safety of the walkers nor the interests of the landowners. Unless there was a great deal of bureaucracy, the access authorities would be unable to contact the landowner in time and the access authority is not in a position, for reasons explained by my noble friend Lady Gale, to check on the safety of the people who have indicated that they wanted access.
There are very serious issues of practicality in relation to any prior notification system. That is not to exclude for ever any debate at a later stage. But as everybody accepts, the amendments are seriously flawed. I believe that the best way forward is to follow a completely different route. After all, the noble Lord, Lord Greaves, was right to say that there is a lot of apparent ignorance as to the way in which people take walks. My walks these days are very close to those described by my noble friend Lady Gale, including the number of stops and the fact that they always take longer than I had originally thought. When I was younger, they were along the lines of those described by the noble Lord, Lord Greaves, when one sees the sunrise, as I have, from Snowdon, Slieve Donard, Creagh Pitridh and Helvellyn. I have seen the sunrise from all those peaks. I should have seen it also from Ben Nevis, to have a full hand of the highest peaks, but 1347 unfortunately the weather was against me and I still have that one to do. But that is the way people take walks. They do not go in for prior notification in those areas.
Of course, in certain dangerous areas, it is advisable, as in Snowdonia, to notify somebody. But neither the access authority nor the landowner is the appropriate person to notify. It will be somebody who can check that you have returned safely within a reasonable timescale. That person can then be responsible for alerting the safety authorities.
The problems which are being addressed here will not be met by either of the two amendments. The first I oppose totally on principle; and the second, I oppose on grounds of practicality. I believe that the way forward is more along the lines advocated by the noble Lord, Lord Marlesford; namely, to find a way of ensuring that the advice which goes to walkers and landowners as a result of this Bill is clear and provides a clear understanding of the relative responsibilities for people to notify or take care of their own safety. That seems to me the way forward. It is a more difficult and complicated matter than having a couple of lines in a Bill. But that must be the most sensible way forward. Walkers, landowners and other bodies engaged will, in parallel with the mapping process, be able to develop that advice, publicity and information.
§ Lord Roberts of Conwy
The Minister kindly conceded the point that it is always advisable to tell someone if one is going on a night walk or a night climb. But is he aware that all the people that we have heard about—the friends, hoteliers and so on—are very often irrelevant these days because we certainly have visitors coming straight from the major urban areas? They do not tell anybody where they are going.
§ 8.15 p.m.
§ Lord Whitty
That may well be the case and I suspect it is the case in relation to Snowdonia. There might be more sense in identifying someone who should be notified. But I suggest to him that neither the landowner nor the access authority as such is the appropriate body to notify. It must be somebody much more local and somebody in touch with a safety organisation.
I should say also that the desirability of such notification varies according to the type of land. It is clearly much more important to do so in Snowdonia than it is on the South Downs. Nowhere has no risks but there is a big difference. Therefore, again, a blanket approach to this matter is not sensible. It is much better dealt with in terms of advice and information. That is where I stand now. No doubt if these amendments are not pursued this evening, we shall return to this issue. I am not prepared to go down either of the roads proposed in these amendments.
§ Viscount Bledisloe
I am not concerned really with the peaks of Snowdon and those people who have come up in a railway train with a lot of bottles of wine 1348 to enjoy the sunrise but rather with the ordinary moorland areas where people live, work and have their being.
I suggest that it is absolutely essential that those people can know, if they want to, whether there are walkers on their land at night so that if they do see and hear a disturbance, they can know whether there are legitimate walkers out there or whether they are villains.
I do not mind how that is achieved. It may well be that the best way is by the local authority having an answering service which the landowner can access to find out whether people have said that they are coming to walk over his land.
People say that it is unfair on the poor little walker because he will have to make a telephone call. But that must be balanced against the points made by the noble Baronesses, Lady Mallalieu and Lady Carnegy, when they spoke of the terror of a lady who may be alone in her house and hears people walking outside. If we are saying that that must be forgotten because the walker may be inconvenienced by having to make a telephone call, then we have the Bill sadly wrong.
The Government must recognise that they are conferring on these people a new privilege. That must not be conferred at the expense of the fear and real loss to the people who have lived, bought their houses and live and work on the land. To say that a telephone call is too much inconvenience for allaying those people is totally unbalanced.
§ Lord Roberts of Conwy
Neither am I concerned with people assembling at the top of Snowdon to see the sunrise. I am concerned about the extension and the new areas and new places where people will be able to go which will be affected by this Bill. All that is fine but, as we have heard from the noble Lord, Lord Dubs, and the right reverend Prelate, there is such a thing as good practice; namely, telling hoteliers, friends and so on where one has gone.
As I have told the Minister, there are now a lot of people coming straight out of the urban areas and telling no one where they are going. The rescue services, who do such admirable work, will probably have their work cut out in finding those people in new locations which have become access areas under this Bill. Surely the whole point about giving prior notification is that if it is so done, then whoever is taking the notification is bound to ask when the person expects to get back and to ask the person to report back when he returns by means of a telephone call.
We have had an extremely interesting debate and various suggestions have been made. Therefore, we should return to this issue at a later date with, perhaps, an amended amendment. Therefore, I shall not press the amendment this evening.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 77 to 79 not moved.]
§ Lord Carter
I believe that it is time to adjourn for dinner. I should point out that I have been listening to this debate with great interest. All Chief Whips are 1349 familiar with people who take spontaneous walks! I suggest that the Committee should adjourn until 9.20 p.m.
[The Sitting was suspended from 8.20 to 9.20p.m.]
Baroness Byford moved Amendment No. 80:
Page 2, line 29, after ("subsections") insert ("(2A),").
§ The noble Baroness said: I speak to Amendments Nos. 80, 81, 82 and 83. Amendments Nos. 80 and 81 are tidying up amendments. They ensure the consistency of the Bill, taking into account the relevant amendments.
§ Amendment No. 82 questions the fairness in the Bill. The Bill limits the owner's freedom to enjoy his or her land or to do with it what he or she wishes. As such, the losses suffered by owners and managers must be kept to an absolute minimum. Therefore where access is currently granted for a cost, the owner must not suffer an additional loss by being stopped charging for access.
§ Areas where access is currently granted at a price are limited. However, in this era of agricultural diversification, such money can be important to the landowner or to the land manager and it is more than likely that it will be ploughed back into the maintenance of the landscape that is enjoyed. The provision of fences, stiles and gates and their upkeep is enormously expensive, as has been mentioned. This Bill will impose access on owners of land, but it is far from clear how much additional help owners or tenants will receive in order to meet the additional costs that result from the Bill. Therefore, it should be possible to charge for access where charges are currently made. I hope that the Minister will be able to tell the Committee that that is the case. Clearly, any other situation should be the exception and not the rule. Any reasonable charges should be met.
§ Access authorities should shoulder the costs associated with providing access and maintaining the fabric needed to provide access. This Bill gives something to the general public at the expense of others' rights and, as such, any financial burdens must be the responsibility of taxpayers. Also landowners should not be unable to generate revenue from their property where they have been used to doing so.
§ In Committee in another place Mr Meacher referred to the National Trust as a responsible landowner, owning more than 200,000 hectares of land in England and Wales. That organisation levies charges for facilities that are provided to complement access to land or to manage the land. As many noble Lords know, the National Trust has many thousands, if not millions, of members who pay an annual fee of something like £60. Mr Meacher also stated that although he was not willing to accept the amendment, he was prepared to have a look at the case. He said that he would consider the matter and return with further proposals. Having read the report of proceedings in another place, I do not believe that anything has transpired since then. The Minister may be able to bring me up to date on that.1350
§ Allied to that—although I have not tabled an amendment specifically in relation to the point—is the issue of tenant farmers, which has been raised with me. Tenant farmers pay a rent to their landowners and they ask why they should have to pay landowners a rent if the public are to be allowed free access. There will be increased management, about which we spoke in an earlier debate, for which they will receive no income but perhaps extra hassle.
Amendment No. 82 does not entitle any person to enter land,
If on the day on which Royal Assent is given to this Act any land was open to members of the public for an access fee".
Various other charities are concerned, including the RSPB, which I visited. It charges a £5 entrance fee and presumably will continue to be able to charge that fee. The amendments merely seek clarification. I look forward to the Minister's response. I beg to move.
§ Baroness Nicol
The noble Baroness mentioned the RSPB, of which I am vice-president. I understand in fact that it does not object to losing its charging facility. It understands that it will need to be discontinued and it does not view that as a major difficulty as it will be possible to charge instead for value-added services such as car parks, WCs and visitor centres. It points out that its main reason for charging at sites is to encourage people to join its organisation. So it is not a major problem and the RSPB does not resist the proposition.
§ Baroness Carnegy of Lour
Of course the RSPB does not mind; it is full of money. It is one of the richest organisations in the country. So that has not got much to do with anything.
My noble friend is suggesting that, because times are difficult for farmers, it is not fair if they lose the ability to charge. I should have thought that the country should encourage farmers to diversify their businesses and that those who are, for example, already charging for people to see their animals or to visit a deer farm should be allowed to continue to do so. There should not be discouragement but encouragement to do that. At the moment, for example, if a farmer grows barley and it is not malting barley, it costs as much to harvest as the amount for which it can be sold. So people do not grow it and are wondering what to do with the land.
This is not an amusing point; it is rather serious. Charging should not be precluded because of access and it is an extraordinary idea that it should be. I hope that the Minister will look at this, if his colleague has not already done so.
§ Baroness Nicol
I, too, do not think that this is an amusing exercise. However, the RSPB was mentioned and I thought it might be helpful for the Committee to have its view.
§ Baroness Farrington of Ribbleton
I, too, do not think that this is an amusing topic. The noble Baroness, Lady Carnegy, is mistaken in thinking I thought it was.
1351 This group of amendments is concerned with the issue of paying for access to the countryside. Amendment No. 82 would require the payment of a fee for access where such a fee was charged prior to Royal Assent. Amendment No. 83 would have a somewhat different effect, preventing people exercising the new right of access on land to which the public were allowed on a fee-paying basis prior to Royal Assent.
I note that Amendment No. 100 defines "relevant fee" for the purposes of Amendment No. 82, and the new clause which is Amendment No. 101 provides that, where a charge was raised for entry to access land at the date of Royal Assent, the right of access will not interfere with the owner's continued right to charge for entry. Amendment No. 101 would have a similar effect to Amendments Nos. 80 to 83; indeed, Amendment No. 101 appears to confirm the purpose of Amendments Nos. 82 and 83 rather than being intended to stand in its own right. Therefore, some of my points will be relevant to Amendments Nos. 100 and 101.
Similar issues were raised during Committee in another place, as the noble Baroness, Lady Byford, said. My right honourable friend the Minister for the Environment explained that a fundamental principle of Part I is that the new right of access should be free to all. We have no problem whatever with landowners charging for facilities associated with access, such as for car parks or visitor centres; nor is there any problem with charging for activities beyond the scope of the right. For example, the provisions in the Bill will not prevent charging for activities which are outside the right of access, such as war games or other organised activities, nor for charging for giving guided walks. Where such charges are already levied they can continue unhindered and there will be nothing to prevent landowners of access land charging for such things in future. Indeed, in those areas which become popular with walkers landowners may well find opportunities for increasing their income.
The Bill has been designed so as to minimise the cost to landowners. Almost all costs will fall on public bodies; for example, the provision of facilities and wardens. In that context, the noble Baroness, Lady Byford, raised the issue of tenant farmers, saying that walkers will gain free access but tenants must pay. Tenant farmers pay rent for their tenancy—the right to farm the land—and profit from that activity. Walkers are simply having access to open country within tenanted land for the purpose of open-air recreation. Most tenanted land will be excluded from the right of access because it is neither open country nor registered common land.
During the debate in another place, my right honourable friend said that we are not aware of any examples where charging for access happens now and which would present problems in future. As has been recognised, he agreed to look at the examples of RSPB reserves mentioned during that debate. The department has indeed discussed the issue of charging with organisations, including the National Trust and the RSPB, and, as my noble friend Lady Nicol 1352 confirmed, the new free right of access is not expected to present a problem. In the case of the RSPB, it is true that a few of its reserves charge for access but, like the National Trust, many, if not most, of its visitors are also members who are entitled to free access and for the remainder of visitors the RSPB simply plans to transfer any charge to car parking.
We have also consulted the British Mountaineering Council, which has a firm policy against payment for access alone to crags or open country. Our conclusion is that there is no evidence of a problem. As drafted, Amendment No. 82 would allow landowners, prior to Royal Assent or when the Act comes into force, to levy any charge they like for access itself and to continue to levy the charge. That would seriously threaten the whole purpose of creating a new right. I am sure that the noble Baroness, Lady Byford, would not want to sanction the possibility of some landowners frustrating access by levying onerous charges on people. We cannot accept that.
For those reasons, I hope that the noble Baroness will consider it unnecessary to press the amendments.
§ 9.30 p.m.
§ Lord Northbrook
I am not sure that the Minister is right that most tenanted land is excluded from the Bill. If the tenanted land qualifies under various criteria it will be included in the Bill.
§ Baroness Farrington of Ribbleton
It is my understanding that most of the tenanted land will be excluded from the right of access because it is not open country or registered common land. The circumstances will arise only where that is the case.
§ Baroness Byford
I thank the Minister for her response. I am not clear why tenanted land will be excluded but perhaps between now and Report stage I can consider the matter. However, as the Minister is aware from our discussions in the Chamber, times are very difficult for farmers. They are concerned that giving the right of access to everyone will require them to carry out additional work for which they will receive no payment. That will be an extra commitment when things are already difficult. I shall return to that issue at another time.
In response to the noble Baroness, Lady Nicol, I know the RSPB are grateful for the work she has done and the commitment she has shown to the organisation. I do not have any argument with that. But we should be aware of and acknowledge that instead of being called a "charge", a fee for entrance, it is now going to be a charge for the facility provided. That is a different move. If the Government are saying that is what is going to happen I do not find that difficult to accept, but it is difficult to define the difference between somebody having access to go into an area and what actually is going to be a facility provided.
For instance, on Dunwich Heath, where I was on yesterday—I do not know if this is quite the thing to say in your Lordships' House—in the toilet facilities, 1353 there is a very clear notice stating that any complaints should be directed to Suffolk Coastal District Council. Is it the charity which is providing the facility or some other body providing the facility on that particular organisation's behalf? I do not know, and it is certainly not a point I wish to labour.
I am aware of the difficulties. The amendments I sought were to deal with those who already have charges as such now. I was not anticipating charging in the future. The Minister was clear on that I believe, although obviously it does have effects for anybody who wants to diversify in the future if the Bill precludes them from so doing.
With those comments, I would like to reflect on the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 81 to 84 not moved.]
Lord Glentoran moved Amendment No. 85:
Page 2, line 36, after ("with") insert ("subsection (1) (a),").
§ The noble Lord said: I beg to move.
§ Lord McIntosh of Haringey
This is a group regarding which I have good news and bad news. I am going to give the good news first, which is that Amendment No. 85 actually is very sensible and the Government do want to consider it because it is a fact of the structure of the Bill that there are two criteria for damage. One criterion is where those entering access land damage a wall, fence or gate and for the purposes of Clause 2(4) are treated as trespassers. Clause 2(1)(a) provides that the right of access does not apply to those who damage these features when entering the land. Subsection (1)(a) is not referred to, however, in Clause 2(4) and though anyone in breach of subsection (1)(a) would be likely to be guilty of criminal damage and in breach of the restrictions, the Government are happy to put the matter beyond doubt and bring forward an appropriate amendment at Report to remedy this.
§ Baroness Byford
I am grateful to the Minister, and we wait to see the amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 86 not moved.]
§ The Deputy Chairman of Committees (Baroness Turner of Camden)
I must tell the Committee that if Amendment No. 87 is agreed to I cannot call Amendments Nos. 88 to 93 inclusive.
Baroness Byford moved Amendment No. 87:
Page 2, line 38, leave out from first ("the") to end of line 39 and insert ("next 72 hours").
§ The noble Baroness said: I speak to Amendment Nos. 87, 89 and 90, which are taken together.
§ The first amendment on Clause 2, page 2, line 38, seeks to leave out from the first "the" to the end of line 39 and insert "72 hours". At present any person failing to comply with the restrictions on access on any access 1354 land would lose his right of access for the remainder of the 24-hour period to midnight. We believe that to be an inadequate sanction, particularly where the breach involves serious, sustained or persistent activities. A more effective sanction, which in turn would be strongly promoted as a deterrent, would be to provide that anyone who acted in this way would forfeit his right to access for a longer period—hence our suggestion of 72 hours. I am aware that other noble Lords, including some on these Benches, have tabled amendments which propose a longer period. At the moment I am dealing simply with the first amendment.
§ The Minister resisted a similar amendment at Report stage in the other place on the basis that landowners would not know whether an offender had breached any restrictions in the previous 72 hours. Those who are more likely to breach any restrictions are inexperienced walkers—hence they will be more likely to travel to the known honeypot sites where wardening services are most likely to be provided, although we are not absolutely sure about that. It is hoped that such facilities will be provided by either professional or voluntary assistance. Such wardens may well be able to identify persistent offenders.
§ The Minister's argument at that stage missed the point that the main value of such sanctions would be a deterrent to inappropriate behaviour. Walkers who are made aware that they risk losing more than simply the right to access for the rest of the day are likely to think twice before they contravene those restrictions. That is especially the case if they are on holiday and risk losing access to a favoured site for three days out of one week.
§ I turn to Amendment No. 91. Clause 2 provides that anyone who abuses the right and becomes a trespasser must leave the access land involved—hence "the relevant land"—and cannot enter any other access land in the same "ownership", which is defined, where there is an agricultural tenant, as any land tenanted by the same farmer. We believe that that is an inadequate deterrent to anyone who abuses the right of access. There are various ways in which the sanction, and thus the deterrent, can be strengthened. Other Members of the Committee have tabled amendments in relation to this matter. For example, to extend the period for which a person who abuses his right is excluded is one means; another approach, which is the focus of this amendment, is to widen the area of land from which the abuser is excluded from the specific area where the restriction has been contravened to all access land. In earlier debates today we discussed the difficulty faced by walkers in knowing on which land they happen to be. For that reason, if they are precluded from a particular person's land, how are they to know that they are no longer on it and have moved elsewhere?
§ The Government argued at Committee stage in the Commons that such an amendment would potentially mean that anyone accidentally breaching a restriction could be refused access to all access land. However, several of the restrictions in Schedule 2 depend on the person "intentionally" or "recklessly" contravening the restriction, or doing so "without reasonable excuse". Moreover, when attention is drawn to an 1355 abuse, for example by a warden, most people will desist. A responsible walker of the kind we hope to see who inadvertently drops a sweet wrapper can be expected to recognise the mistake, pick it up and the matter will not be pursued further.
§ Where the offence is a matter of strict liability, the matter is more serious—for example, the lighting of a fire. In those cases, accidental breaches are less likely and it is appropriate for the person who abuses his right to lose the right of access. Where such breaches are persistent or deliberate, it is only right that a stronger sanction should be in place. The general point about sanctions is that their primary purpose must be to deter inappropriate behaviour and prevent problems occurring in the first place by making clear to walkers that abuses will not be lightly tolerated. I believe that the importance of that message can be pressed home by making it clear that weighty sanctions beyond those currently in the Bill will fall on anyone who deliberately abuses his rights.
§ I speak next to Amendment No. 92. The amendment seeks the removal of trespassers from any access land. Quite a few walkers and indeed others will have difficulty in knowing whose land they are on. When we come to the issue of maps I suspect that that point will be highlighted.
In Committee in another place the Minister, Mr Meacher, accepted that,
adequate penalties should be available and accept that a fair balance should be struck between the penalties imposed on landowners and on walkers".—[Official Report, Commons Standing Committee B, 11/4/00; col. 225.]
The amendment would mean that a person who is removed from the access land should be banned from any access land. My fear is that, understandably, the walker will probably not know on whose land he is or which other land is owned by whom. Perhaps the Minister will tell me that the maps will indicate ownership in some way.
Mr Meacher went on to say:
As I have repeatedly told landowners, I am anxious to protect their legitimate interest".—[Official Report, Commons Standing Committee B, 11/4/00; col. 231]
That is the reasoning behind my amendments. I beg leave to move.
§ 9.45 p.m.
§ Baroness Miller of Chilthorne Domer
I rise to speak to Amendment No. 88, which is grouped with Amendment No. 87. It is a probing amendment. It seeks to find out why the Government believe that one day will be sufficient. Our amendment seeks to extend the period. I am sure there will be a good deal of debate about whether 27 days is reasonable or whether the period should be longer or shorter. There are two reasons for seeking to extend the period. First, one should consider the position of the rangers, whose lives will already be fairly difficult in trying to keep people on the straight and narrow, so to speak. They will be expected to deal with everything from the petty to the very serious. The petty offences will be more easily 1356 dealt with by initially asking people not to commit them again. However, for serious offences, one day does not seem sufficient. Life for those wardens will be very difficult if the person turns up on day three, day four and day five and commits a similar offence. It would be very vexatious for them.
Secondly, and more seriously, if a provision as ineffective as this is left on the face of the Bill, the likelihood is that there will be a greater need for the use of by-laws, which of course will criminalise the offences. There is a good deal of concern about by-laws being used to criminalise a minor breach of restrictions. The effect of having only a 24-hour restriction will be to make landowners begin to press the by-laws when time and again the same problem is being encountered.
I do not think that those problems will arise as often from local people using the right of access. The problems often arises with holidaymakers who do not know the local rules and regulations. They may not initially intend to cause trouble but they then move on to feeling, having been asked to leave for 24 hours, that as they have come a long way they want to turn up the next day and do very much the same thing again. I do not think that one day covers the holidaymakers, who we hope will be responsible users of access but who of course will not always be so. For those reasons we feel that it would be quite right to think of extending the period for which people should be asked to leave to something which will be very much more meaningful for those people who are asked to leave and also for the wardens and rangers who will have to try to enforce the provisions of the Bill.
§ Earl Peel
I am a little confused about exactly which amendments we are discussing. Perhaps I may he allowed to make one or two general points about the whole question of sanctions, which I regard as being a terribly important part of the Bill.
It seems to me that the ability to impose sanctions can be divided into three parts. First, there is the time restriction. Secondly, there is the question of whether it should apply just to the access area on which the offence has taken place or whether it should be extended to include all access areas. Thirdly, there is the question of whether a criminal offence should be imposed on those who repeatedly ignore the request to leave. However, one point is clear. The sanction currently available to an owner—to ask someone to leave his land for 24 hours—is nonsense and will deter no one.
The restrictions which the access authority imposes are there for good reasons. They are there to protect the interests and the management responsibilities that fall on those who work in such areas. We have to take those restrictions extremely seriously. To ask someone who has transgressed any of the restrictions at, say, six o' clock in the evening to leave for the remainder of the day is no deterrent at all. It provides no confidence to owners and managers in the system itself.
The fact that this part of the Bill needs strengthening appears to have a great deal of support, but the mix of options is very varied indeed. One can either increase 1357 the time period and/or include all access land, as suggested in Amendments Nos. 91 and 92, or include some degree of criminality, as suggested in the next group of amendments, to which we shall come later. My view, which I put to the Minister as a possibility, is that we should have a combination of all three. For a first offence, the person who transgresses should be asked to leave for, say, 72 hours; for a second offence, he or she should be asked to leave all access areas; and for a third offence, perhaps some degree of criminal sanction could be imposed. It strikes me that there is a real weakness in the Bill, in that there is no proper deterrent against the few—I acknowledge that it will be a few—who repeatedly abuse their rights and ignore the request by the landowner to leave his land.
The brief from English Nature produced for the Bill states:The Bill is inadequate in that it fails to distinguish between those infringements which are of a relatively minor consequence and deliberate acts contravening closure restrictions which could have serious consequences for wildlife".As I have said before, I regard crimes against wildlife as very important, but I find crimes against the economic interests of those who live and work in these areas of equal importance. I shall listen carefully to what the Minister has to say and I very much hope that he will take my suggestions into account.
As the Bill stands, the only action open to those owning and managing land is to resort to the civil courts—unless, of course, there is a transgression against a by-law, in which case criminality might be attached to it. However, a good many of these offences will not be covered by by-laws. We all know that resort to the civil courts is inefficient, time consuming and extremely expensive. I suggest that that is not a realistic deterrent and that we must look at something more stringent.
I wish to raise one other matter with the Minister. I may be digressing slightly but it is an important point. Some of the offences listed in Schedule 2 to the Bill come from the Peak Park access agreements, under which they are criminal offences. Why have those offences not been included in Schedule 2? Their worth has been proved through practical experience and it would be sensible to include them in all access areas. Amendment No. 95 would be an imperative part of the whole sanction system. It would criminalise those who in any way abused those who were trying to protect their property.
As I have said, a package of sanctions could be put together in different ways in order to produce the meaningful deterrents that I believe will be necessary to deal with those very few people—I acknowledge that this will concern only a few people—who persistently ignore requests to leave land. However, if that is not done, those who have the responsibility of management will have absolutely no confidence in the Bill.
Earlier on the Minister commented that fairness needs to he shown to both parties. As the Bill stands, if a landowner in any way prevents access, that will 1358 taken to be a criminal offence. We should introduce a quid pro quo here and I hope that the Minister will consider seriously my remarks.
§ Baroness Young of Old Scone
I should like to speak around this amendment rather than in support of it. That is because the grouping makes it difficult to explore the issues raised here without straying into the territory of other groupings.
I believe that some of the proposals made in the first group of amendments rightly focus on the issue of sanctions but are most probably not all that practicable in terms of their implementation. However, I urge the Minister to consider whether the Bill is in general somewhat deficient in respect of sanctions for persistent and wilful infringement, either under the provisions of Schedule 2 or Chapter II The vast majority of countryside users will act responsibly when exercising their new statutory rights and it would probably be wholly disproportionate to introduce too stringent a set of sanctions for many of the infringements listed in Schedule 2, in particular where those infringements can occur inadvertently.
However, we are considering an entirely different set of circumstances where deliberate and persistent infringements under Schedule 2 or Chapter II take place. Those could have serious consequences on conservation grounds. For example, as regards restrictions and closures applied to individual areas on conservation grounds which follow submissions to the relevant authorities by advisory bodies under Clause 24, it should be remembered that such closures and restrictions will have been applied following full consultation and independent scrutiny. Local access fora may also have been involved. I am sorry but, despite the recent discussions on this point, as a classicist it would stick in my throat to refer to them as "forums". Subsequent to that raft of local consultation and advice, the restrictions and closures would be endorsed and then followed up with a wide dissemination of information about them. There could be no doubt that the decision was serious, that it had been reached as a result of full consultation and that any breach could have a serious conservation impact.
For those reasons, anyone who persistently contravenes such restrictions or exclusions after the necessary widespread independent assessment and scrutiny should be subject to rather more severe sanctions than is currently provided for in the Bill. A clear message must be sent about the consequences of such infringements.
Criminal sanctions are in place in existing legislation, but they can be applied only after the damage has already occurred. The whole point of applying closures and restrictions following consultation is in order to prevent conservation damage rather than to lock the door once the horse has long gone. In considering this group of amendments and, in particular, Amendment No. 98 to which we shall come in due course, I would ask the Minister to consider imposing stronger criminal sanctions to deal with the kind of deliberate and persistent infringements I have just described. Such sanctions 1359 would be used only rarely but they would broadcast a clear message that when, on the rare occasions that restrictions or exclusions are applied, they are serious and are in place for a purpose. They should therefore be obeyed.
§ 10 p.m.
§ Lord McIntosh of Haringey
These amendments have caused me to wonder whether the law of trespass, which has been in existence for many years, is fully understood in this country. The relationship between trespass, aggravated trespass and criminal offences is absolutely crucial to the way in which the Bill has been designed. For that reason, I am surprised that a number of the landowners who have spoken appear not fully to understand the relationship. We all have a common interest. I am sure that we have all been trespassers in our time—except, of course, the noble Earl, Lord Peel, who would have to go a very long way to get off his own land in order to be a trespasser. He declared his interest at a very early stage of the consideration of the Bill.
My noble friend Lord Whitty was quite right when he said at the beginning that we have to be fair as between landowners and walkers. The range of penalties and sanctions in the Bill achieves that. The other consideration that we have to have is that any sanctions or penalties should be practical to enforce.
The loss of a statutory right as a consequence of a breach of a restriction is not intended as a punishment. That is not what it is about. It is intended as a mechanism by which landowners can ensure that they are not obliged to tolerate the continued presence on their land of someone who is in breach of the restrictions.
The Bill provides for the right of access to cease to apply to those who breach any of the restrictions in Schedule 2 or who fail to comply with a restriction imposed under Chapter II. This is intended to prevent someone who has been required to leave access land following a breach of a restriction immediately being able to walk back on to the land in renewed exercise of the right. Clause 2(4) is the most sensible way to deal with this. To go much further than this—as a number of these amendments do—either in the direction of extending the period of exclusion or extending the area of exclusion may well be out of proportion to the seriousness of the breach, bearing in mind the nature of some breaches. I was going to give the example of swimming in a mountain stream, but I think the example given by the noble Baroness, Lady Byford, of dropping a sweet wrapper is much better. We do not believe that this is desirable.
Trespass is not the only consideration. In cases of aggravated trespass, the public order Acts apply now and will continue to apply. When an offence of any kind has been committed on access land, criminal sanctions are available to deal with those cases. Surely the criminal law is the right way to deal with serious breaches.
1360 My noble friend Lady Young spoke about persistent and wilful infringement. Surely the right way to deal with that is through the criminal law. It is perfectly adequate for the purpose; it has always been adequate for the purpose.
§ Baroness Young of Old Scone
I thank the Minister for giving way. If an offence has occurred and damage has taken place, of course the normal criminal law will intervene. The point I was trying to make is that if there has been an exclusion or restriction order to prevent someone damaging wildlife interests—by disturbance or by other means—and that order is infringed, it could well be that the damage will have occurred in an irretrievable way by the time the sanction can be applied. By putting provisions in the Bill that will prevent people creating conservation damage, we are trying to stop that happening. A sanction that merely states that once the damage has occurred, criminal proceedings can take place does not act against someone who, for example, repeatedly goes on to a patch of land where disturbance is a real issue— and has been shown to be a real issue by consultation with a wide range of interests—and a restriction or an exclusion has been agreed.
§ Lord McIntosh of Haringey
There are two answers to that. First, where there is a threat to wildlife or a conservation issue, there are all kinds of provisions in the Bill for prior exclusion. It is not necessary to resort to by-laws; it could be a part of the structure of the access provisions. Therefore, prevention—which is what my noble friend is rightly talking about—is achieved in that way in other parts of the Bill.
My second point is that these amendments, which are about extending the exclusion where no offence other than trespass has taken place, will not solve that problem. If damage to nature and wildlife has taken place, it does no good to extend either the time-scale or the geographical scope of exclusion, which is what the amendments would do. What is needed then are the criminal sanctions that we already have. We simply do not believe that someone who breaches what may be a trivial restriction and thereby becomes a trespasser should lose the right of access to all access land, which is what is suggested in at least one amendment.
On a practical level, it would simply not be possible to enforce a sanction. There is a good chance that if a person is asked to leave an area of access land because he has breached a restriction, if he decides to return later in the day he will be identified by the owner or the owner's agent and challenged. But if he lost access to all access land, it is unlikely that anyone would even know that he had breached a restriction on other land; therefore, a landowner would have no reason to know or even wish to ask him to leave.
That point was brought out by the noble Baroness, Lady Byford. She asked how we should know that a person has breached a restriction somewhere else? I am afraid that she drew the wrong conclusion. Even a walker might not know that a restriction had been breached if the owner of the land on which the breach took place was not bothered by it and allowed the 1361 person to remain on the land. The noble Baroness asked whether the maps would show land ownership. That might be considered to be the ideal, but in practice I do not believe that ownership, which is a more volatile thing, can or will be shown on the maps.
§ Lord Elton
As a stranger to the Bill and not a landowner, perhaps I may ask the noble Lord a question. Does not the Bill protect tenanted land as well? The noble Lord has referred throughout his delivery while I have been listening to him only to landowners, as though the Bill is designed to protect people like my noble friend Lord Peel. It is surely designed also to admit people to the land of much smaller landholders who may be regarded rather differently by the public.
§ Lord McIntosh of Haringey
We debated this issue last week when the noble Lord was not present. I agree that the definition of ownership is counter-intuitive, hut it includes people with rack rent tenancies.
If a walker who has been in breach of a restriction moves to other land in different ownership, he must continue to abide by the restrictions or he will lose his right of access to that land as well. I suggest that this is a requirement which landowners and walkers will be able to understand. Indeed, I find it difficult to understand what else we could do. Without a national network of digital cameras and fax machines, it would be impossible for a landowner to be aware of who had lost his or her right of access by means of a breach of restrictions on other people's estates.
§ Lord Rotherwick
Perhaps I may intervene in an attempt to help the situation. Surely, with IT as it is now, it would be simple, if such a situation occurred, for a landowner to indicate the fact on a website available to all other landowners. Surely it would be right, if someone created such a breach of sanctions on one land, for the sanctions to be relevant to any adjacent lands as well.
§ Lord McIntosh of Haringey
The idea horrifies me. That is Big Brother with a vengeance. I mentioned digital cameras and fax machines, and the noble Lord extended that to cover a website. The prospect in our open country of landowners being in communication with each other on an hour by hour, minute by minute basis with websites, cameras or whatever it may be, fills me with horror.
§ Lord Rotherwick
I point out to the noble Lord that that already happens through the crimewatch scheme. When we have a suspect van in our area or other such events occur, the police notify us by means of a fax machine. I do not see any difference in their quoting the colour of a car or describing the type of person by the colour of his hair than actually stating the name of the person on a slightly updated piece of IT technology.
§ Lord McIntosh of Haringey
We are talking about trespass. I know that the noble Earl, Lord Peel, talked 1362 about offences and it is easy to slip into that subject. However, we are talking about trespass, which has been going on for a very long time. It has not needed such dramatic measures as those suggested by the noble Lord, Lord Rotherwick.
I turn to the other issue addressed by the amendments; namely, the question of the period for which someone breaching a restriction should be prohibited from returning. I understand the view expressed by the noble Baroness, Lady Miller, but I envisage real difficulties with enforcement. Are records to be kept of when the breaches occurred? Is any breach, no matter how trivial or unintentional, to count? In most cases, we believe that it would be sufficient disruption to a day's walking to lose the right of access for the rest of the day, as provided by the Bill. If there is a serious breach—I must emphasise this again—tougher sanctions will almost certainly be available; indeed, they are already in existence.
I believe that we are trying to use a sledge-hammer to crack a nut in this case. We have an enforceable sanction for something that is not a serious offence. We have perfectly good existing laws for aggravated trespass and good existing criminal laws for serious offences, which can be dealt with without amendment to this Bill. If we have repeated offences, as ref erred to by some noble Lords, how would one landowner know that a walker had breached restrictions on another landowner's land? Landowners can seek injunctions where walkers repeatedly breach restrictions. That is the situation now and, indeed, landowners have always been able to do so. It is no less realistic than prosecuting for criminal offences. In fact, it is likely to be easier to approve and less costly.
I return to the issue of the balance between penalties applied to walkers and landowners. The Bill provides for those sanctions to be applied to landowners, unless they erect misleading notices or ignore repeated notices to remove an obstruction. There are no sanctions for failing to facilitate access. There can be reference to by-laws if needed. The suggestions made in this group of amendments either for extending the geographical area of exclusion or the time for exclusion do not appeal to the Government.
§ Earl Peel
I have a terribly important fundamental point for the Minister. If a closure order is in place on a particular piece of land and a walker persistently ignores it, I presume that that order will be covered by a by-law. If that is the case, the walker will be committing a criminal offence. It is a question of whether or not a closure order will be covered by a by-law. Quite frankly, if we do not have such a sanction, the Minister has reiterated all my fears about the sanctions under the Bill being meaningless.
§ Lord McIntosh of Haringey
If the noble Earl is referring to what I said about sanctions against landowners, I believe that to be outwith the scope of these amendments. It may be better to deal with that issue at another point. However, it is possible that I 1363 misunderstood the noble Earl. I thought he was talking about my remarks on sanctions against landowners for obstructing rights of way.
§ Earl Peel
No. I was talking about a persistent breach. If, after consultation with the landowner, the access authority has imposed a closure order on a certain piece of land for a very good reason and a walker persistently ignores it, I presume that such an order would be covered by a by-law, which would make that breach a criminal offence. If that is not so, we have no sanctions at all.
§ Lord McIntosh of Haringey
It does not have to be covered by a by-law. Such a persistent offence could be aggravated trespass or could be covered by the criminal sanctions provided under the Bill. It does not require a special by-law in order to achieve that aim.
§ 10.15 p.m.
§ Lord Greaves
I have two questions. First, the Minister said that under the proposals people would be required to leave the land in question and not return for a certain period. In practice, if there is night-time access and people are asked to leave the land in question at a quarter to midnight, under the Bill as presently drafted they would be entitled to return at one minute past midnight. There seems to be a lack of logic here. Is the Minister prepared to consider whether 24 hours should mean 24 hours, rather than the remainder of the day in question?
Secondly, if someone is required to leave the land in question, does that involve leaving that land which is owned by a particular person, or does it involve retiring to the nearest right of way, even if that right of way crosses the land in question which may be only five metres away?
§ Lord McIntosh of Haringey
Those are two interesting questions. As regards the first question, I am prepared to consider whether the words "24 hours" should be substituted for the term "the remainder of the day". In the debate on night-time access, the noble Lord, Lord Greaves, said that to reject night-time access would exclude half of the access provisions of the Bill. However, in terms of the number of people involved, the figure probably constitutes a far smaller proportion than that. Of course I appreciate that an increase in the period during which there is loss of access could constitute a great deterrent to trespassers. That could apply to the small number of trespassers who, as the noble Earl, Lord Peel, said, might return day after day. Our mind is not totally closed on that matter, nor on the issue raised in Amendment No. 90, although we certainly oppose the other proposals. As to the question of whether leaving the land in question involves retiring to a right of way, that is the case even if the right of way lies across the land from which exclusion is required.
§ Viscount Bledisloe
I hope that the noble Lord will explain what would happen in the following situation.
1364 A man may come on to one's land and let his dogs off their leads at a time when they are supposed to be on their leads. He is told to leave. He utters several expletives and says, "I'll be back tomorrow". Sure enough, he returns the following day and lets the dogs off the lead again. He is again told to leave. He utters yet more expletives. He returns the following day. Is the landowner to do nothing other than say to the man, "You must leave", and resort to civil proceedings at his own expense to obtain an injunction against the man? Is there to be no sanction or assistance from the access authority or the criminal law to assist the landowner to deal with the man who is determined to flout the restrictions?
§ Lord McIntosh of Haringey
I should declare an interest in advance of our debate on the dog provisions in the Bill. On occasion I remonstrate with people who exercise their dogs off the lead in the grounds of Kenwood House when they should have them on the lead. I tell them that they are contravening the by-laws and they reply with expletives. Therefore, I appreciate the comments of the noble Viscount, Lord Bledisloe, on that matter. However, the Bill proposes no change in the law in that respect. In large tracts of land in this country, both urban and rural, it is an offence to exercise a dog off a lead. That position is not changed by the Bill. The same provisions relating to trespass, aggravated trespass and the criminal offence of breaching by-laws are available and will be available in the future.
§ Viscount Bledisloe
I say with respect to the noble Lord that a great change in the law is proposed. If a man exercises his dog off the lead on my land and says, "I shall come back tomorrow and I shall let my dog off the lead again", I reply, "No, you will not. This is my land. The moment you cross it I shall have you thrown off because you are not allowed on to it at all". From now on, that person will be allowed to walk on the land and as soon as he sees my back is turned he will let the dog off the lead. At present I can bar him from the land and have strong men remove him as he approaches.
§ Lord McIntosh of Haringey
I believe that the phrase is "escorted to the boundary". That does not change whether or not it is access land.
§ Baroness Byford
I thank the Minister for responding to these clauses. I am not entirely happy with what he said. I give the Minister another chance. Do I gather that he will consider the issue and return on Report with a provision which might meet part way some of the concerns raised?
§ Lord McIntosh of Haringey
I said that I was prepared to think again about Amendment No. 90. We are firmly opposed to amendments which would extend the geographical coverage of any exclusion. However, without commitment, we are prepared to consider the timescale of exclusion on, I suspect, a somewhat more limited basis than is proposed in some of the amendments. If I say that I shall consider 1365 Amendment No. 90 but am extremely reluctant to consider any of the others, I hope that that makes the position clear.
§ Baroness Byford
I am grateful to the Minister for making the position clear. As I have put my name to some of the other amendments, I am not sure how grateful I am.
I thank the noble Lord for considering the matter. I cannot speak for other colleagues. We have put forward an amendment to lengthen the time. Colleagues on the Liberal Democrat Benches may wish to speak on that. I encourage the Minister to give the matter great thought. The noble Lord, Lord Greaves, referred to a period of 24 hours. A stronger deterrent for trespass is important. To shrug shoulders and move on to the next debate does not give a good message to the public. I suspect that other Members of the Committee believe that even those sanctions are insufficient. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 88 to 92 not moved.]
Baroness Byford moved Amendment No. 93:
Page 2, line 39, at end insert ("or subject to the same designated interest.
() A person interested in land may designate his interest for the purposes of subsection (4) by giving notice to the owner of the land and the access authority.").
§ The noble Baroness said: This amendment makes explicit the different interests in the land and allows the non-owners to require compliance with the restrictions to which this clause refers. It avoids the absurd situation of an offending visitor hopping over the hedge and retorting, "You are not the owner. Prove that this land belongs to you". That is why I sought to refer to the land manager rather than landowner. It may sound preposterous but the noble Viscount, Lord Bledisloe, pointed out that some people are not the easiest to deal with when trespassing. The law must take that into account. I beg to move.
§ Baroness Farrington of Ribbleton
This amendment seeks to change the provisions in the Bill relating to the land to which a trespasser may not return. It would add a new category of land: that with a designated interest. Trespassers would lose the right of access to any land subject to the same designated interest. Those with an interest in the land would be able to designate that interest for such purposes by informing the owner of the land and the access authority.
That approach would meet with similar difficulties to the approaches in other amendments that we have discussed. Parcels of land subject to the same designated interest may not be contiguous with each other. Where a sporting interest is designated, for example, the areas of land could well be in different parts of the country. That could lead to the trespasser being uncertain about which areas of land they were excluded from. It would also be difficult or impossible 1366 to enforce. Those managing the land in different areas would be unlikely to know that the person in question had no right of access.
We have tried to ensure that the trespass provisions in the Bill are fair and enforceable. It is more likely that an owner or tenant or their representative will recognise someone as a trespasser if the provision applies only to land in the same ownership or tenancy. The provisions suggested in the amendment would unnecessarily widen the area of land to which return was not allowed, would leave the user unsure where such land was and would be unnecessarily bureaucratic and difficult for landowners' tenants and those with an interest in land and their agents to enforce. I therefore hope that the noble Baroness will not press the amendment.
§ Baroness Byford
I thank the noble Baroness for her response. The Government seem to respond to nearly every issue by saying that it is difficult or impossible or would become bureaucratic. At some stage, we have to grapple with that which is difficult but must be grappled with. However, this amendment is not such an issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 94 not moved.]
§ 10.30 p.m.
Lord Glentoran moved Amendment No. 95:
Page 2, line 39, at end insert—
("() Any person who intentionally obstructs any person acting on behalf of an access authority, district council, or any person interested in the land, to enforce Schedule 2or any restriction imposed in relation to access land under Chapter II, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.").
§ The noble Lord said: This is another amendment about sanctions. Land managers appear to have no enforceable sanctions. Sometimes, if they meet somebody who has made a mistake, they can ask them politely to go. That is how life ought to be, but unfortunately it is not how life really is. As long as 20 years ago, I remember my mother being rolled over by would-be poachers on the road up in the hills of County Antrim. The situation certainly has not got any better.
§ The Bill does not appear to provide for an offence of obstructing anyone seeking lawfully to enforce the restrictions under Schedule 2, or any other restrictions under Chapter II. Such a provision is standard in existing by-laws for access agreement land, such as in the Peak District National Park. We submit that a parallel provision is needed.
§ Amendment No. 97 is a little different. It would criminalise trespass as a deterrent. We have been speaking about that for some time. I know that we are talking about only a very small percentage of irresponsible people. That is why accepting the amendments and criminalising trespass would not have any significant impact on the Bill. However, it would make life considerably easier and more pleasant 1367 both for the land managers and for people who regularly enjoy the access to the land which we hope they will have.
The Government's election manifesto stated that,
we will not … permit any abuse of a right to greater access",
to the open countryside. In their Framework for Action document in 1998, the Government further stated:
We have also been conscious of the need to respect the countryside. Greater freedom would become self-defeating if the landscape itself were harmed, its tranquillity eroded, and its wildlife put at risk. Nor do we want to see any damage to the economic base of rural areas".
We talked about both those matters earlier this evening. The document continued:
The new right will not be an unrestricted one".
The new right will not be an unrestricted one. There will be restrictions to take account of the legitimate needs of those owning and managing the land".
Later, the document also affirms,
the continued ability of landowners to develop and use their land after the introduction of the right".
Those assurances that abuses of access will be prevented and that land management activities on land affected by the new right will be able to continue, in effect unhindered and uncompromised, are critical to the success of the Government's proposals. Hear, hear! If those commitments are not honoured, substantial problems will arise for owners and managers, for the public and for those administering the new arrangements. Yes, we agree with you, Government.
§ Rights should be matched by responsibilities. There should be national regulations to govern public behaviour on access land. Owners and occupiers will be criminally liable if the statutory right of access is not respected. Therefore, it is not unreasonable for the requirements on walkers and ramblers to be correspondingly national, consistent and backed by law. A code of conduct will not provide an adequate basis for preventing the abuse of the new right, and reliance on by-laws would lead to damaging inconsistency and confusion, compounded by a lack of coverage in many places.
§ While many users of access land will be responsible—I would venture to say "most"; I suspect 90 or perhaps 99 per cent—high standards of behaviour cannot be guaranteed. That is already recognised in existing access legislation via the provision of a schedule to the National Parks and Access to the Countryside Act 1949 forbidding certain activities on access land and the provision for local authorities to establish comprehensive by-laws to govern public behaviour on land covered by access agreements under that Act.
§ Moreover, previous governments have accepted that a wide range of activities needs to be controlled in that way by approving by-laws to that effect. The schedule to the 1949 Act and the by-laws for access land in the Peak District and Dartmoor National Parks indicate a very wide range of activities which need to be controlled. That range of activities goes 1368 beyond those included in Schedule 2 to the Bill. It must be stressed that, by approving such by-laws, governments have accepted that the activities involved should be criminalised over large areas of land —80 square miles in the Peak District. Those precedents for creating criminal offences in relation to public use of access land should apply nationally.
§ It is essential that the new right is underpinned by detailed regulations governing specific activities, otherwise the only sanction available to an owner who is concerned that users are abusing the right will be to ask them politely to desist. That is a point that I made at the beginning. Owners need to be able to point out to abusers that, if they persist in the activity, they will commit a criminal offence and be liable to arrest and prosecution. There is also an important point of equity. If criminal sanctions are to apply to owners who obstruct access, criminal sanctions should apply also to users who abuse the right.
Current deterrents against a person abusing the right of access are insufficient. The person merely becomes a trespasser for the remainder of the day, while an occupier can be fined £1,000 for erecting a false sign. The Minister has accepted that there should be a balance between the penalties imposed on landowners and walkers. In Committee on 11th April, Mr Meacher said:
I absolutely agree that adequate penalties should be available and accept that a fair balance should be struck between the penalties imposed on landowners and walkers".—[Official Report, Commons Standing Committee B. 11/4/00: col. 225.]
That fair balance does not as yet apply in this context.
§ Criminalising the restrictions under Schedule 2 will provide wardens and owners with a powerful deterrent to continued abuse of access rights. A polite request to someone to stop unacceptable behaviour, which is often all that is needed, can be backed up by the supplementary point that continuing unacceptable behaviour could be met with a criminal charge and a fine. That is how the current access by-laws in the Peak District have been used and they have worked effectively in controlling much unacceptable behaviour of heavily used access land over many years.
§ The Minister or the noble Baroness, Lady Nicol, said earlier this afternoon that we do not need research; we have years and years of practical experience. Here is an example of that practical experience.
§ National regulations should be adopted under the legislation to apply automatically to all access land. It would not be appropriate to leave such controls to local by-laws because a separate set of by-laws would often need to be made and approved for every discrete parcel of access land—a huge bureaucratic burden. Moreover, different sets of rules in different places would create major confusion.
§ This amendment sets out to criminalise actions set out in Schedule 2 or Chapter II in the same way as bylaws do, yet on a national basis. That will provide continuity country-wide and all interested parties will understand the level of responsible behaviour required.1369
§ It may he argued that it would be unfair to criminalise the likes of swimming, although it is already criminalised under bylaws relating to access land in the Peak District. However, it should be remembered that upland lakes and streams often provide someone's private drinking water supply. Effective sanctions must be in place to allow for those situations. I realise that I have been addressing both Amendments Nos. 95 and 97 in the same speech but they seem to run together and I hope that the Committee will forgive me. I beg to move.
§ Lord McIntosh of Haringey
I am grateful to the noble Lord, Lord Glentoran, for acknowledging the parenthood of Amendment No. 95. He is quite right, of course, that as regards the Peak District National Park there is a similar offence to that which he wishes to propose; namely, the offence of intentionally obstructing any person acting on behalf of an access authority, district council or any person interested in the land.
And then he went on—and I am grateful for that as well—to discuss Amendment No. 97, although he will recognise that Amendment No. 97 is virtually identical to Amendment No. 86 which was not moved. Therefore, I shall gladly return to my arguments on Amendment No. 86 which I was not able to use.
First, I turn back to Amendment No. 95. The noble Lord is quite right to say that we have made provisions for wardens under Clause 18. Those provisions mirror those which have been operated successfully by the national parks authorities in the national parks. But they have been operated, with the exception of the Peak District National Park, without any special offence of the kind that is proposed by Amendment No. 95.
We already have a criminal law which contains numerous offences dealing with the use of threatening, abusive or insulting behaviour against another person. We believe that that law is adequate for the purpose. It is not a question here of adding by-laws. There is a criminal law and the offences which are identified in Amendment No. 95 would be, if proved, offences against the criminal. We do not see any need to impose an additional penalty of the kind which is proposed by Amendment No. 95.
As I say, we are aware of the situation in the Peak District National Park. We are including an offence of obstructing a warden.
§ Lord Glentoran
I thank the Minister for giving way. I believe that there is a difference. If you are attempting to remove somebody from your land who is there illegally and life gets difficult, you cannot send for a policeman; you are probably on your own; and you have no backing. Here we are looking for some deterrent. It is not quite the same as a criminal situation in a different area.
§ Lord McIntosh of Haringey
The amendment would make obstruction an offence. Obstruction is an offence. Threatening, abusive or insulting behaviour is an offence. It does not have to be a new offence in this 1370 Bill; it is an offence in the criminal law. That is applicable to the situation on access land with wardens or owners or land managers or whoever. When there is a general offence, there is no need to create a particular offence that does not achieve any more.
§ Viscount Bledisloe
Does not the noble Lord recognise that it is easy to obstruct without being threatening or abusive? Suppose I tell someone to leave my land and you, standing by, say, "No, don't go; there is nothing much he can do about it", you are obstructing, but you are not being threatening or abusive. One can be obstructive in polite language. Perhaps the Government believe that that is what some people have been doing anyway. There is no necessary connection between threats or abuse and obstruction.
§ Lord McIntosh of Haringey
The noble Viscount, Lord Bledisloe, anticipates what I shall say on Amendment No. 97. My point on that amendment is that for hundreds of years there have been laws of trespass in this country. For hundreds of years we have had a Parliament which has had its full representation—I put it modestly—of landowners who would have wanted trespass to he a criminal offence and it has never been found possible to make simple trespass a criminal offence, with exceptions to which I propose to refer.
§ Earl Peel
I cannot wait to hear what the noble Lord has to say. The noble Lord constantly tells us that any sanctions are not workable, that they are impractical, that we cannot impose them and so on, and goes on to say that nothing has changed. But something has changed: we have a new Bill, a very important Bill. It is a Bill that gives extremely extensive rights to people over private land.
If we accept those changes that the Minister appears to dismiss as being almost irrelevant, I believe that we shall need new sanctions to deal with the new situation. I shall be interested to hear what the Minister has to say, but it seems to me that unless we have some common by-laws in place to deal with the sort of problems that we have been discussing, the landowner will have no redress at all against all such difficulties that other noble Lords have identified.
§ Lord McIntosh of Haringey
I am simply not convinced that by providing a new category of access land, we are creating something that is different in kind, rather than in degree, from the existing situation. Already there is the possibility of trespass; already there are sanctions against trespass. For hundreds of years there have been attempts to criminalise trespass and that has always been found to be impossible. There are plenty of sanctions in the existing criminal law against trespass, which I continue to claim to be adequate for the purpose of this Bill. They cover the points that lie behind these amendments, and I insist that they are adequate for the purpose.
Returning to the Peak District National Park, I wonder whether those who have advised the noble Lord, Lord Glentoran, about that park have told him 1371 how many convictions there have been for breaches of this by-law. My understanding is that there has been only one recent prosecution of several cyclists. I do not believe that that is sufficient justification for overturning the ancient law of trespass in this country.
§ Lord McIntosh of Haringey
One could argue that, but I do not believe that that would carry much weight. In this country the law of trespass is an ancient law. There are examples throughout the centuries of trespass being a crime. Trespass on land where a person is in pursuit of game, including woodcock and snipe, is an offence under Section 30 of the Game Act 1831 and Section 9 of the Night Poaching Act 1828.
I suspect that, when those laws were passed, the penalty was rather more severe than it would be now. I suspect that, if an offender was not hung by the neck until dead, he would at any rate be banished to Botany Bay.
Section 20(2) of the Firearms Act 1968 says that,A person commits an offence if, while he has a firearm [or imitation firearm] with him, he enters or is on any land as a trespasser and without reasonable excuse [and] (the proof whereof lies on him)".Trespassing on railway lines, cuttings, embankments, sidings and so forth is an offence under Section 55 of the British Transport Commission Act 1949.
My point is that, whether it is by-laws or other legislation, there are adequate sanctions to deal with aggravated offences of trespass. But to bring the criminal law into simple trespass on the occasion of this Bill would be a dramatic change which neither this nor any other government could accept.
§ 10.45 p.m.
§ Lord Glentoran
I am always interested in the noble Lord's responses, particularly when he and his researchers are able to give us such a pleasant history lesson in the process. I certainly did not know about the night poaching.
However, I am still concerned about there not being adequate deterrents. I think particularly of the situation in conservation areas where a trespasser could, within an hour or so, commit acts which would be at least aggravated trespass and there is no deterrent in place to make the general public take the trouble to apprise themselves of what the situation is.
As I said earlier this afternoon, we are trying to ensure that we do not encounter problems on the ground when the Bill is enacted. The most important thing of all is that all those who choose to avail themselves of this new right are "encouraged" to ensure that they know what their rights are and are not. It is amazing what effect serious deterrents can have in making people take a little more trouble to find out what they have done. It would be a tragedy if two or three people went into an area which was closed to access for the breeding season—a sensitive nature 1372 conservancy area—and did untold damage quite unwittingly because they had not taken the trouble to find out, or perhaps because they thought it would be fun and there is no sanction against them except trespass; and nobody is given any sort of serious sentence for trespass.
That simply is not enough. I see the noble Lord shaking his head. But I do not believe that, as the Bill stands, there are adequate sanctions in place to protect not only the rights of the land managers, but also the countryside, the environment and the wildlife that inhabits it.
§ Lord McIntosh of Haringey
Perhaps I may give two examples, one in relation to offences which other people may think to be trivial and the other specifically related to conservation. It is already an offence to uproot a wild plant; it is already an offence to leave litter in a public place. The noble Lord's amendments are proposing to criminalise simple trespass.
§ Lord Glentoran
Not simple trespass but aggravated, serious trespass. However, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 96 and 97 not moved.]
Baroness Miller of Chilthorne Domer moved Amendment No. 98:
Page 2, line 39, at end insert—
("() Where a person without reasonable excuse becomes a trespasser because of a failure to comply with a direction made under section 24, he shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.").
§ The noble Baroness said: The amendment seeks to ensure that where there is a serious threat to wildlife there is a sufficient penalty to deter any reckless or uncaring behaviour. It also seeks to probe whether the Government believe that they will have complied with the relevant European legislation.
§ Members of the Committee will bear in mind that if the amendment were accepted it would apply to an area that was already closed for a good reason. As the Bill stands, a person can contravene Section 24 and be banned only for 24 hours—perhaps a little more if the Government consider that proposal. If the land is already closed, it must be closed for a good reason. Therefore, contravening the closure is already more serious than simply engaging in some of the activities listed in Schedule 2.
§ The provision does not seek to criminalise harmless trespass. It is for people who have no reasonable excuse and who knowingly fail to comply with the Section 24 direction. There will be some onus on agencies to ensure that people are aware of the closures and responsibility will rest with them.
§ Strong sanctions are required in order to signal to the public the importance of restrictions on sites which are already sensitive and because they are a measure against flagrant breaches. The new right of access applies to approximately 1.25 million hectares of open country which are notified as SSSIs. Of those, 300,000 1373 hectares are designated as being of international importance under the EC birds and habitats directives. I tabled the amendment with those areas particularly in mind.
§ Clause 24 provides a sound framework for restricting access to protect nature conservation interests but in practice those restrictions are likely to apply to a small area of land which supports particularly sensitive species or habitats and where the potential for harm is high. We believe that in many cases, restrictions will be necessary in order to deliver the Government's requirements under the EC birds and habitats directives. Therefore, it follows that a good case will have to have been made for any restrictions or exclusions and it is logical that the penalty for ignoring those restrictions should be greater than for any other access land.
§ There is also the issue of even-handedness because the Bill introduces powers for courts to fine owners, occupiers and public bodies under Part III up to £20,000 for causing or committing damaging operations on SSSIs without reasonable excuse. As Part I stands, there seems to be no penalty to be imposed on individuals who may damage such sites intentionally.
§ Better wildlife protection is one of the least controversial aspects of the Bill—Part III is popular on all sides of the Committee—but without the amendment included in Part I the Bill does not deliver in that area. I beg to move.
§ Earl Peel
I have sympathy with the amendment and believe that the noble Baroness has a point. She spoke of even-handedness and I ask her, as I asked the Minister earlier, whether she regards nature conservation as having a priority under the Bill as against the economic importance of activities in these areas. I believe that there is a distortion which is throwing the Bill out of kilter. If we do not acknowledge the importance of economic activities people will suffer more than I thought they would.
§ Baroness Miller of Chilthorne Domer
I have heard the noble Earl's references to economic activities throughout our debate tonight and I agree that they are important for rural areas. Opening up access should have an economically beneficial effect in many areas; for example, pubs will sell more meals to walkers. Therefore, I do not believe that his argument about economic access bites. Preserving wildlife and allowing visitors to come to see it—albeit sometimes at a distance—has been proved by various agencies to be a strong economic force.
§ Lord Whitty
I do not want to revisit the wise words about not criminalising trespass which have been uttered by my noble friend Lord McIntosh, but this falls into the same category. If trespass is to be 1374 criminalised for a particular reason, in criminalising simple trespass, as my noble friend said, we are beginning to unravel the totality of the approach on trespass. That is a law which has stood us in reasonably good stead, as he has said, for centuries. The Government recognise the importance of ensuring that increased access does not threaten wildlife or conservation.
The noble Earl, Lord Peel, mentioned economic activity. I believe that he is misconstruing what was said earlier in the sense that it has always been recognised that land management purposes and particular activities on the land would be reasons for restrictions agreed by the Countryside Agency. If he is not talking about general economic development, as he has just said, I point out that particular economic development is already covered. I make that point in case the matter is misunderstood.
In relation to criminalising trespass for conservation purposes, however, it is believed that the amendments in this form begin to unravel the whole law of trespass. In reality, the simple loss of the statutory right of access through the trespass laws is not intended to deal with more serious breaches. It will allow for people to be required to leave the land, for whatever period of time is eventually agreed, but a more serious offence clearly has to be dealt with in a different way. Part III provides substantially new penalties in the area of conservation and protection of wildlife. In that context, it is agreed that fines and even imprisonment would be available—which they are—but that those who breach the restrictions on the right of access but neither cause, nor are likely to cause, any harm or damage as a result should not be criminalised.
There are other problems with the proposed amendment in terms of the reference to "reasonable excuse". I am not sure what a "reasonable excuse" would be in this context. The circumstances envisaged are very specific. In other areas of legislation—for example, covering a reaction to an emergency—I am not clear what that would mean. There would need to be further definition of that.
This issue of protecting areas of conservation and wildlife needs to be tackled in the context of the new offences and the new approach set out in Part III rather than in the context of the amendment, which threatens to unravel the whole law of trespass. The Bill will introduce fines and prison sentences for serious offences. Given that protection of wildlife will be a consideration and relevant to a very large part of access land, those offences are relevant there. If, with that objective in mind, noble Lords wish to extend or modify those offences, the relevant provisions are in Part III of this Bill and not here. We are rapidly getting into an argument about mere trespass being criminalised in this context, and the noble Earl, Lord Peel, will immediately get up and say, "What about criminalising mere trespass for other purposes?" and the whole thing will begin unravel. I am not in favour of doing that on a blanket basis.
By-laws have a role to play in particular situations. Indeed, English Nature, for example, already has the power to make by-laws to protect all European sites.
1375 The noble Baroness, Lady Miller, referred to that. As I understand it, it has been rarely used, but that possibility is available in relation to dangers at particular sites. We do not wish to proceed as the noble Baroness suggests. We believe that the additional penalties in Part III will deal with almost all of the situations. If there are inadequacies in those provisions we should return to them in Part III, not here.
§ Baroness Miller of Chilthorne Domer
I thank the Minister for his reply. I look forward to exploring whether the contents of Part III fulfils the Government's obligations under the directive. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 99 had been withdrawn from the Marshalled List.]
Viscount Bledisloe moved Amendment No. 99A:
Page 2, line 39, at end insert—
("() Any person who is on any access land shall, if so required by an authorised person, give full particulars of his identity and produce to the authorised person proof of the correctness of the particulars so given.
() Any person who has with him on any access land a dog shall, if so required by an authorised person, produce to him the dog licence relating to that dog.
() An "authorised person" means a warden, any person having an interest in the access land, or any person duly authorised by any person having any such interest.
() Any person failing, without reasonable excuse, to comply with any such requirement shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale.").
§ The noble Viscount said: At this stage Amendment No. 99A is a probing amendment for two reasons. First, the amendment has only recently been tabled and the Committee has not had time to react to it. Secondly, the amendment contains an anachronism in that it refers to dog licences. I am informed by both the noble Baroness, Lady Nicol, and the noble Countess, Lady Mar, that dog licences no longer exist. The fundamental point of the amendment is to inquire of the Government whether they intend to ensure that any owner of land or other person who is charged with supervision of this measure, such as a warden, has the right to know the identity, and to require proof of it, insofar as the individual has the necessary material with him, of anyone who is on land in exercise of the rights conferred by the Bill. I believe that that is eminently reasonable.
§ At the moment, if anyone wants to come onto my land I am entitled to know who he is. Obviously, if I was one of the people involved, which I am not, the occasions on which I would most wish to do that would be either when somebody had already been seen committing an offence or I knew well that he was a person who was likely to be committing an offence. For example, the person might have with him some dogs which I was sure I had seen off the leash yesterday chasing animals but had been unable to catch up with him. There might be many reasons why the owner would want to know the identity of the person in 1376 question. It cannot be unreasonable to say that I am entitled to know who is on my land so that if the person does anything wrong or misbehaves I have some way to deal with the situation.
§ I hope that the noble Lord will not give the Committee the same old tired reply that this is merely an alteration to the law of trespass and nothing has changed. Something has changed. At the moment, if a man enters land without the owner's permission he can be removed then and there. Under the Bill the person becomes a trespasser only if he has done something wrong. Surely, the owner needs to know the identity of the person before he does something wrong so that if and when the act occurs he knows who the individual is, even if he cannot catch up with him.
§ The noble Lord, Lord McIntosh, accepted that if he tried to suggest to someone on Hampstead Heath that he should put his dog on a leash he would be met with expletives. Far more so if, with no sanctions available, one asks someone to prove who he is. Once the expletives have been deleted the answer will hardly exist. I ask the Government to make plain whether it is intended that the warden, the owner or his representative should be entitled to know the identify of the people who are exercising the right. I beg to move.
§ Lord Whitty
I hope that this is not the same tired old reply, although we are already getting rather tired and we have some way to go. I am not dismissing the noble Lord's amendment on the point—which he acknowledged—that it would have to be a pretty old dog to have a dog licence. Dog licences were abolished in 1988. He acknowledges that that is a flaw in his amendment.
The rest of his amendment seems to open up wider implications of law to that which we are discussing here. I was concerned just now that the whole law of trespass was being opened. Here we are opening up the whole issue of civil liberties and everything else in requiring someone to have an identity card. That is something which hitherto this House in particular, and Parliament as a whole, has resisted. He is in effect—the way he expressed it just now—suggesting that if he had a suspicion that someone is about to commit an offence he could demand an identity. That is effectively extending the sus laws to the countryside.
The implications of what the noble Viscount proposes go well beyond the proper protection of the interests of the landowner or the land manager. I hope that the noble Viscount will think again. If he feels that the Bill is deficient in that respect then he should take some other approach to it, but I think that it will stand up.
§ Viscount Bledisloe
I found the noble Lord's answer extremely unsatisfactory. I see no reason why anyone who exercises a right to go on to someone's land should not be willing to identify himself to that person. It does not seem to me to be an unreasonable requirement. It does not require him to carry an identify card. It requires him, if he has some, to have some formal means of identification. Otherwise, one 1377 has people roaming over the land and when they do something wrong there is no way of enforcing any sanction on them because one cannot find out who they are.
What does the noble Lord expect an owner or a warden to do when some bolshie man, having let his dogs off at the wrong moment and they chase the sheep, when asked his name gives the same answer as that given by the acquaintances of my noble friend Lord McIntosh on Hampstead Heath, and do not reply other than in expletives? What does one do? So far the noble Lord has not explained what the warden is meant to do in those circumstances, or how he can possibly effectively police the situation if he is not able to know who the people are.
§ Lord Whitty
The noble Viscount has changed his ground. I do not wish to prolong this debate. I think this is an absurd amendment. He has changed his ground from previously referring to someone he suspected might have committed an offence to saying someone who has committed an offence. There may be arguments relating to a situation where someone has committed an offence, which we will return to on the basis that we have previously discussed. The idea that one can require people to carry an identity card and be prepared to identify themselves whether they commit an offence or not when they are on someone else's land, seems to raise much wider points of civil liberties which should not be edged into the Bill in that way. It is a really serious attempt for the tail to wag the dog.
§ Viscount Bledisloe
I am grateful to the noble Lord for what I understand him to say; that he will at least be reconsidering before we reach Report whether or not people who have committed an offence should be required to disclose their identity. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.100 not moved.]
On Question, Whether Clause 2 shall stand part of the Bill?
§ The Earl of Caithness
Perhaps I may probe the Government on Clause 2. In Clause 2(5) they have a definition of "owner" which I am glad to see includes the farm tenant. But why have they excluded the commercial tenant? With diversification in rural areas, which I believe the government are trying to encourage, a number of commercial tenancies are now under the Landlord and Tenant Act; for example, equestrian centres. Part of the land over which the horses might be grazing could become the subject of access land. Therefore, why are they excluded?
§ Lord Whitty
I am not sure that all of them would be. Some such diversification would be covered by the Acts referred to in Clause 2(5). However, it is a reasonable point. I shall write to the noble Earl to clarify the position.
Clause 2 agreed to.
1378 [Amendments Nos. 101 and 102 not moved.]
Baroness Miller of Chilthorne Domer moved Amendment No. 103:
Insert the following new Clause—