Countryside and Rights of Way Bill

HL Deb 05 October 2000 vol 616 cc1772-814

House again in Committee on Clause 21.

Baroness Byford moved Amendment No. 242: Page 13, line 3, leave out from ("land") to end of line 4.

The noble Baroness said: In moving Amendment No. 242, I should like to speak also to Amendment No. 246. These two amendments seek clarification as to which interests will be able to make discretionary closures. Clause 21 provides for restrictions on access, or the closure of access land, at the discretion of the owner and, any other person having an interest in the land and falling within a prescribed description".

It is not clear to me why the clause provides that interests other than the owner must be prescribed. Clause 41 provides a clear definition of an interest in land: 'interest', in relation to land, includes any estate in land and any right over land, whether the right is exercisable by virtue of the ownership of an estate or interest in land or by virtue of a licence or agreement, and in particular includes right of common and sporting rights, and references to a person interested in land shall be construed accordingly".

Many of those listed in this definition could quite legitimately have reasons for wanting to restrict or exclude access. For example, a shooting tenant might seek restrictions during a shoot or when undertaking moor-burning; commoners and grazing licensees might wish to restrict access at various times. A sports club with an agreement with the owner might wish to restrict access during an event—for example, hang-gliding, fell running, orienteering or motorcycling. All those interests, as well as the owner and any agricultural tenant, should be able to make use of the discretionary powers under Clause 21.

The provision to prescribe other interests suggests that the Government wish to limit the range of interests able to make discretionary closures. If that is the intention, the Government should make it clear and set out their arguments.

The amendment would remove the reference to prescription, thereby giving any interested parties in access land the ability to close land or to restrict access at their discretion. The ability of all interested parties to have access to these provisions is important if their legitimate interests are to be fully safeguarded. I beg to move.

9 p.m.

Baroness Farrington of Ribbleton

We have already debated the discretion available to the owner of the land under Clause 21 to close or otherwise restrict access to it on up to 28 days in each year. As the noble Baroness, Lady Byford, said, the amendment would make it possible for anyone with any interest in the land to use all or some part of the period allowed for the discretionary closure of the land. In effect, that would mean that the freeholder, the tenant, a grazing licensee, the holder of a sporting lease and each commoner would have the right to close the land. That would be a recipe for complete confusion.

We have therefore provided for the discretion to be vested under the Bill solely in the owner or farm tenant, but for the Secretary of State to have powers to divide up some of the 28 days' discretion among other persons with an interest in the land. For example, the regulations could allow, say, 14 days to be reallocated from the owner to the sporting tenant.

We recognise that the vesting of the entitlement to the discretion in the owner is not a perfect solution. But there is no perfect solution. In general, we expect that the landowner, or the farm tenant, if there is one, will be the person who has most interest in securing the closure of the land, or restrictions on access to it, for the purposes of day-to-day land management reasons.

There will be nothing to stop the owner using some or all of his discretionary 28 days in favour of someone else with an interest in the land. Indeed, in due course, it may be that leases will make specific provision for one party to apply all or part of the discretion on behalf of the other party.

We recognise that there will be cases where someone with an interest in the land is unable to persuade the owner to close the land on his behalf, perhaps because some or all of the discretionary 28 days have already been committed to some other purpose, or because the two parties simply do not get on. We are certainly ready to look at the scope for using the regulation-making power in Clause 21 to vest some of the 28 days in other identifiable interests. But any such regulations would bring both benefits for some and disadvantages for others. We would therefore wish to consult extensively before making any such provision.

It is important to remember that, even where an interested party has no entitlement to the 28 days and cannot win over the owner's co-operation, he will still be entitled to apply to the relevant authority for a direction for the purposes of land management, public safety or the prevention of fire. I can reassure the noble Baroness, Lady Byford, that this will ensure that the requirements of all persons with an interest in the land to restrict or exclude access can be achieved regardless of the vesting of the discretionary days.

Amendment No. 246 would seek to make it a requirement that regulations are made under Clause 21(3)(b). We believe that the provision in the Bill that regulations may be made is right. I have already explained that we do not have a closed mind on this issue. The Government will continue to listen carefully to those who will be most directly involved in managing access. We want to be clear about the merits of apportioning the 28 discretionary days between people with different interests in the land before deciding whether such apportionment is sensible and workable.

The Bill allows us the flexibility to make that decision in the light of views and experience. I hope, therefore, that the noble Baroness will not press the amendment.

Baroness Byford

I am grateful to the Minister for that encouraging response. The Government are well aware of the sensitivities and difficulties in organizing these days. The Minister pointed out that it was possible for the land manager to reallocate some of the days—for example, to a shooting licensee. She said — I hope I have this right—that it is not a perfect solution. I am grateful to her for stating that the Government understand that there is a problem. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Luke moved Amendment No. 243: Page 13, line 6, leave out ("twenty-eight") and insert ("ninety").

The noble Lord said: I want to assure the Minister that I listened when he said that the 28 days are sacrosanct. The question of splitting up the 28 clays across an estate seems to be something of a compromise. I should like to ask him one or two questions. They concern how the situation applies to high land. Much of the access land will he high land. Sheep in the highlands are likely to be more nervous than those further down. Lambing is likely to take longer. Lambs are more liable to be disturbed by people, particularly people with dogs. Further down, when lambs arrive and people are around, the ewes are not too upset. High land is very significant.

It is not very satisfactory to have a blanket 28 days which applies to all the access land. I appreciate that the Minister will not agree to 90 days. Why did the Government arrive at 28 days; why not 27 days or, indeed, 29 days? Some criteria must have been used to arrive at that figure. Was it a percentage of the amount of land that was thought to be suitable for this application? I shall be interested to hear the answer to that question. I beg to move.

Viscount Bledisloe

I had originally thought that 28 days was far too little, although I recognise that 90 days is a rather optimistic period for extension. However, I have been very much encouraged by what the Minister said. He accepted that normally it would be appropriate for further closure time to be given where, for example, birds were hatching on grouse moors or lambing was in progress. If I am right in understanding him to that extent—that the 28-day period is meant to be the basic minimum and that proper land management, husbandry and so on are accepted as good grounds for extending that period—my concerns about the 28 days will be considerably diminished.

Lord Whitty

I am glad the noble Lord, Lord Luke, recognised that he might be pushing his luck slightly on the 90 days. The noble Viscount may also be slightly pushing his luck in terms of his interpretation of what I said earlier. For all the reasons he outlined, and many others as well, the 28-day period can be extended by application to the Countryside Agency. That consent would not be unreasonably withheld, taking all factors into account. What is more difficult is to say that the 28 days could be systematically extended. It would have to be on a case-by-case basis on the grounds of a particular activity—for land management, conservation or safety reasons. That would be by application to the agency.

The noble Lord, Lord Luke, asked me why we had decided on 28 days. It seemed to be a reasonable balance between the original approach, under which there was no discretionary power, and a position where excessive discretion could lead, in effect, to the land being closed for the periods when people would be most likely to visit it. Twenty-eight days has quite a history in certain legislation, but it is a different 28 days from that set out in planning legislation and so forth. It is a reasonable length of time to give people more or less absolute discretion for land management purposes and with the right to extend that, or to have days outside of that period, for particular purposes.

The noble Lord asked about sheep on the hillside as compared with sheep further down. I am not entirely sure that I can give a straightforward answer to that question. An application for additional days over and above the 28 days, which may include weekends within the 28 days, for lambing purposes would have to be considered by the Countryside Agency in relation to the difficulties which access by people, particularly people with dogs, might cause during that period. It may be that a different case could be made for the highlands. I am not sure that I would wish to commit the Countryside Agency to take that view. Nevertheless, the case could be made. In addition, as I said in relation to the previous debate, there is the flexibility of different parts of land being subject to different 28-day periods. That could not be used unreasonably so that all access was blocked for successive periods down the most accessible route. Nevertheless, a good degree of flexibility is involved there.

I think the noble Lord recognises that it would be unwise to press the 90-day period. I hope that I have at least made an attempt to answer his questions.

Earl Peel

Perhaps I may suggest to my noble friend on the Front Bench that we refer to the high ground rather than the highlands. Otherwise people may think that we are moving into territory over which we have no legislative jurisdiction.

I wonder whether the Minister can help me. To what extent could any request for an extension over and above the 28 days be compromised by how the 28 days was or had been used? For example, let us suppose that a landowner or shooting tenant submitted a request to the access authority for further closure days for shooting purposes because he had used up his 28 days to safeguard his nesting birds from, say, 15th May through to the middle of June. Could the access authority respond to that request by saying, "Well, we don't really approve of the way you've used your 28 days and therefore we shall decline your request for further days"?. That is quite an important point.

Viscount Bledisloe

Perhaps I may put a related question to the Minister that looks at this matter from another angle. Could one apply for a special extension period before the permitted 28 days had all been used? For example, could one say, "I have a large number of nesting birds. Give me a closure order for them. I'll keep the 28 days for use later in the year". Can that be done, or can one apply for special extension days only after the 28 days have been used?

9.15 p.m.

Lord Whitty

In both those cases, the Countryside Agency may well respond to a request for extra days for shooting by asking why they cannot be accommodated within the 28 days. It is reasonable for the Countryside Agency, where it does not receive a reasonable response, to refuse the application.

As regards the timing, the request does not necessarily have to be sequential, but the Countryside Agency might well pose one or two questions to the applicant. The provisions of Clause 22 set out the detail of how the 28 days are to be used. For that reason, in response to the noble Viscount, the application does not have to be sequential; it can be made at any time.

Baroness Masham of Ilton

If a landowner does not agree with the response to his application, does he have any right of appeal? Can he appeal to a higher authority?

Lord Whitty

Yes, on the matter of restrictions, one may appeal to the Secretary of State.

Lord Luke

I thank the Minister for that interesting reply, which was what I expected to hear. We are probing this whole area and I hope that there may be a possibility of a little more give and take. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 244 to 255 not moved.]

On Question, Whether Clause 21 shall stand part of the Bill?

The Earl of Mar and Kellie

I have given notice of my intention to speak to whether Clause 21 should stand part of the Bill for the following rather gloomy reasons.

I do not believe that the closure process—of exclusion and restriction—over a portion of access land will work. It is important that we do not legislate in an impractical way. The issues are as follows. First, how will notification ever be effective and complete? Secondly, what will happen if a closure is violated? Thirdly, what will happen if a commercial activity taking place on a closed day is disrupted? I shall go through each of those questions in slightly more detail.

I foresee considerable difficulties in notifying all access users that access to a particular piece of land has been suspended. Some will not know and some, I fear, will not care. Their presence on the temporarily closed access land would lead to the second issue. If a closure day is violated, can the land manager claim another day in lieu? Violation could disrupt a legitimate business activity, such as the sale of a shooting day. As regards the third issue, will compensation be payable for such disrupted days, some of which would positively harm the rural economy?

So far the Bill is silent on these issues, which are the product of this clause. My point is that the clause will cause more heartbreak and stress than may be worthwhile.

I should briefly like to take the opportunity to raise one more related problem; namely, that of unwitnessed damage. The Minister rightly reminded the Committee that witnessed damage could lead to criminal proceedings being brought under existing legislation. But the nature of this beast is that damage is rarely witnessed. How will compensation be made, or will it fall on the land manager's head? At present, the Bill makes no provision for this, so it would appear to fall on the manager. However, my main concern is about the disrupted days. How will the land manager achieve a day in lieu of a disrupted day?

Lord Whitty

I am not entirely clear what the noble Earl means by "disrupted day". Clearly, if someone enters land which is normally access land but has a restriction on it which allows a closure, he or she becomes a trespasser on that day and the law of trespass applies. If they cause criminal damage, then the law of criminal damage applies. That is what happens to either a single person or a group of people.

If the noble Earl is envisaging a situation where a shoot, for example, was disrupted in the sense that it was not possible for the shoot to proceed and therefore a day's shooting was lost, clearly that is a good argument for the land manager or landowner to talk to the Countryside Agency and say, "Can I have another day because this is what happened to one of my 28 days?"

It would not be granted automatically; it would have to be shown that there had been disruption—and "disruption" would mean a loss of the total activity, or something like it, rather than the fact that there was a single trespasser or a few trespassers on the land that day.

Lord Glentoran

What would the Minister expect the response time to be in such a situation?

Lord Whitty

The noble Lord is entitled to ask me that question, but I cannot give him a straight answer. All applications would be dealt with as speedily as possible and would be subject to the same requirements on the Countryside Agency. I assume that if it were a day of shooting one would need at least a week before one could organise a substitute day.

I should make it clear that in relation to actual disruption or damage, the law of aggravated trespass would be available in addition to the normal powers over a trespasser.

I shall need time to interpret the latest piece of information that has been passed to me. I hope that the noble Earl will not press his opposition to Clause 21.

The Earl of Mar and Kellie

I should like to probe further. I think the Committee now understands that there may be a good case in the event of a disrupted commercial day. I also have in mind a situation where perhaps the land manager wants to have a picnic in solitude, which means that anyone on the skyline is disrupting that picnic in solitude. What would happen in that situation?

Lord Whitty

The land manager would clearly be entitled to approach the Countryside Agency—although if I were the Countryside Agency I would not entertain that one for very long. But I would not like to pre-empt its decision.

I failed to respond to the other point made by the noble Earl in terms of notification. Some of this falls within the general discussion about notification and the issue of closures or temporary closures—ad hoc closures, if you like. We have discussed the arrangements that the Countryside Agency hopes to put in place to inform people of restrictions and closures. Clearly, a temporary closure for a few days or a day would need to be communicated as effectively as possible. As mentioned in an earlier debate, there may well be a role for wardens in this respect as well.

Clause 21 agreed to.

Clause 22 [Land management]:

[Amendments Nos. 256 and 257 not moved.]

Lord Glentoran moved Amendment No. 258: Page 13, line 28, after ("management") insert ("or use").

The noble Lord said: This group of amendments again refers to permitted closures, but it seeks to make the Bill a little less precise—a change from my tack until now, I confess. It concerns the words "use" and "management". I think that the noble Lord will have little trouble with it.

Defining land management to include "use" would ensure that closures and restrictions could be provided in relation to activities that took place on access land but did not in themselves involve the management of it—for example, shooting, hang-gliding, fell races. It would put beyond doubt the issue of whether shooting per se, as contrasted with heather-burning, pest control or bracken-spraying, amounts to "management". In everyday language, shooting would probably not be considered land management. It might be, if it is undertaken for pest control; it might not. The noble Baroness, Lady Nicol, catches my eye, prompting me that it could possibly be management.

On Report in another place, Mr Meacher stated that shooting itself was a form of land management. He said: our attitude involves giving land management a pretty wide meaning. We do not consider it sensible to provide an exhaustive list of definitions. Such a list would certainly include agricultural and forestry activities as well as shooting—I am happy to place that on record—but defining land management in the way proposed by amendment No. 98 risks excluding activities that should fall within the scope of the Bill".—[Official Report, Commons, 13/6/00; col. 889.]

While that assurance goes some way to easing the concerns over shooting on access land, it falls far short of the Government's initial determination that extending access should not interfere unduly with other legitimate activities. It also does not consider that owners or occupiers may have personal or social reasons—I am looking at the noble Earl, Lord Mar and Kellie—for excluding the public on certain occasions.

Under the current provisions it will be impossible to close land at weekends for any reason under the discretionary system. Closures at weekends can, therefore, only arise through permission, and only for land management reasons. Commercial enterprises that may be undertaken on access land, such as paintballing or tank driving, would be visitor based and probably more dependent on weekend use than weekdays, and would generate revenue. If these types of enterprises do not fall under the definition of "land management", they will be unable to gain permission to close on the days when it is essential for their economic viability.

Defining "land management" to include "use" would also remove uncertainty as to whether access land could be closed for such uses as hang-gliding, motorcycling events, paintballing and fell running (God forbid!), which take place either regularly under agreement or on an occasional basis.

I should like to speak also to Amendments Nos. 260, 261, 262 and 265 in this grouping. Amendment No. 260 relates to Clause 22 and reads as follows: Page 13, line 28, after ("land") insert ", or for the conservation of its flora, fauna, or geological or physiographical features,").

The amendment would permit closures for the conservation of the land as well as for its management.

There is currently no formal right of application in the Bill for owners or occupiers to seek closures or restrictions on conservation grounds. Some conservation bodies may own access land—for example, the RSPB, wildlife trusts, the National Trust—and other private owners may also wish to secure closures or restrictions for the purposes of protecting wildlife. While they may be able to request closures, the lack of a formal right to apply means that there is no corresponding appeal against a refusal to grant an application made under these conditions.

The effect of these provisions is that the case for closures on conservation grounds is given less overall weight than the case for closures for land management in Clause 22; or, indeed, for fire or safety, as set out in Clause 23. This lack of balance should be corrected. The Game Conservancy Trust is also concerned about the issue. It is important that owners should be able to apply for conservation closures; for example, for pest control or conservation purposes.

The amendment would widen the definition of land management under Clause 22 to include closures to conserve important features of the land. The right of application for occupiers to close on nature conservation grounds would then be accompanied by a right to appeal under the provisions relating to the land management closures in Clause 28. If there was a separate right to apply for conservation closures outside Clause 22, it would need a separate right of appeal. Sweeping it up under the existing appeal provision by widening the scope of the existing right of application under Clause 22 represents, we suggest, the best way forward.

However, it may be argued that, although there is no formal right of application for closures on conservation grounds, owners are able at any time to ask the Countryside Agency, the Countryside Council for Wales, or NPAs to exercise their power under Clause 24 to make a direction to close or restrict access. But there is no guarantee that any such request will be properly considered, let alone granted, especially if it comes from an individual owner, as opposed to a wildlife trust. Conservation objectives risk being frustrated if there is no formal right of application for closures or restrictions on conservation grounds. Extending Clause 22 to cover conservation, as well as land management, would provide the necessary right of application to ensure that proper weight is given to conservation objectives on access land.

The Government's original consultation paper stated that, owners and occupiers may have personal or social reasons for excluding the public on certain occasions".

With discretionary closures only allowing for 28-day closures and restrictions, excluding weekends, and "land management" being narrowly defined, how will an occupier be able to protect his land, on conservation grounds, from possible damage by the public? So we have broadened the concept of management to include "use" and we now have reference to "conservation".

I turn to Amendment No. 261. Clause 22 needs to provide a more detailed definition of "land management" for the purposes of permitted closures. It is important that the Government make clear what grounds for closures they view as being legitimate. Landowners and managers need to be certain that any enabling powers will be adequate to cover their legitimate needs. I am confident that the Countryside Agency, the Countryside Council for Wales and the national parks agencies will consider seriously their requests for such closures and that they will respond positively to them. Such closures may need to be granted for single days while a specific activity like shooting is under way. They may also be required for groups of several days at a time, such as during military training exercises; and, indeed, they may be required for longer periods where there is a risk to animal or plant health. They may also be required for specific reasons—for example, during the bird nesting season—or all the year round in respect of particularly dangerous land.

The current provision also fails to take into consideration any other use of land for which it would be appropriate to close for a period longer than 28 days. I have in mind activities like hang-gliding, fell races, and so on. Various sports may well have a licence agreement with the owner, in addition to other activities, that the Government may not have considered. Land should be able to be closed by agreement for reasons that are not directly linked to what is normally perceived as land management.

There is no definition of land management. Although the Government have confirmed that shooting would be a legitimate ground for closure, this is not specifically included in the Bill, nor are other land management procedures on access land—for example, the burning of heather, grazing of livestock or pest control. Further clarification is required. There is no advantage in defining what land management means in great detail whether by an inclusive or exclusive list. Flexibility should be retained given the great variation in present (and likely future) forms of land management on the land affected. This amendment aims to accomplish that.

I turn to Amendment No. 262 in this lengthy group. Amendment No. 262 concerns a possible definition of the management of land. Amendment No. 262 reads: Page 13, line 36, at end insert— For the purposes of this section, the management of land shall include heather burning, shooting of pest and game, gamekeeping practices and bracken spraying".

The term "management of the land" in Clause 22 is too vague and imprecise. Whereas it may well be considered that prudent land management includes the activities mentioned in the amendment on the ground that they fall within the term I have mentioned, the matter needs spelling out.

We need to consider who will interpret the measure. Heather burning is a part of prudent land management. It is essential in the interests of nature conservation, as are the shooting of pests and game and gamekeeping practices. The bracken fern is a weed whose range extends world wide. It is difficult to control. I know that from first-hand experience as I have spent too much money trying to kill it. It spreads by underground rhizomes and by spores in the wind. It is estimated to occupy between 1.3 and 2.8 per cent of the land surface of the United Kingdom and has the potential to expand by 1 per cent to 3 per cent per annum.

Whereas it is acknowledged that bracken has some advantages in terms of landscape and wildlife protection—I refer to fritillary butterflies, butterfly orchids and cover for birds such as pipits, nightjars, whinchats, redstarts and some warblers—it has many disadvantages. In large masses it reduces visual diversity, harbours flies and is a fire risk. It is a cause of disease, ticks and flystrike. It is carcinogenic and is a serious cause of disease in cattle and sheep, including blindness, carcinomas, louping, tick-borne fever, lyme disease and skin rash. I have too many acres of it and have spent much time killing it. That is a worthwhile occupation but it is necessary to keep people off the land while one is doing that.

Amendment No. 265 reads: Page 14, line 5, at end insert— In this section 'purposes of land management' and 'purposes of the management of the land' include—

9.30 p.m.

Viscount Bledisloe

Most Members of the Committee are at least semi-literate and are probably capable of reading the amendments in the Marshalled List without the noble Lord's assistance in reading out every one of his amendments.

Lord Glentoran

I thank the noble Viscount for his comments. I shall attempt to speak a little more briefly, if that is required. I trust that the Committee is following the amendments line by line. Therefore I shall not read out Amendment No. 265.

Amendment No. 265 concerns land management. The provisions of the Bill are imprecise and vague. The amendment sets out what activities should be included for the purposes of land management. I beg to move.

Baroness Nicol

Amendment No. 261 contains a credible list of land management activities. But surely grazing is a normal activity on much land and could hardly be called a land management exercise.

Lord Glentoran

Did the noble Baroness refer to grazing?

Baroness Nicol

I do not take grazing to be the kind of abnormal exercise which would require a day for extra management.

Baroness Masham of Ilton

Perhaps I may ask a question on paragraph (c) of Amendment No. 265. I do not think that I am deviating; I want clarification. What relationship will the Countryside Agency have with MAFF, for instance over a stewardship scheme? Will there be conflict over the control of invasive plants? As regards the way herbicides are used, might there be a muddle, with different messages?

The Earl of Caithness

I speak to Amendment No. 264 in this group. It addresses the same problem as that addressed by the noble Lord, Lord Glentoran: to find some suitable definition of land management. It is nice to see that the noble Lord the Chief Whip is in the Chamber. He has a great deal of experience on the agricultural side of land management. I am sure that he has come specifically to hear this debate, as he will doubtless have sympathy with my noble friend and me in trying to define this subject.

I am attacking this definition from two angles: first, from the point of view of those who have to make the Bill work; and, secondly, to try to stop a lot of stupid and fruitless applications going forward, thus saving time. As drafted, the Bill does not define land management. I have attempted a limited but not exclusive definition of what it might include. It is now recognised, and the Government have said, that shooting can clearly be within the list of activities which could be classed as for land management purposes. It would be impossible, I believe, to have a definitive list. However, I believe that we should give the managers of land and the appropriate authorities a more workable definition than the words in the Bill at present.

I have attempted to do so. I have included in my definition, conservation, maintenance or enhancement of the land". I am sure there can be no difference between the Government and ourselves on that issue. I have also added the words, in pursuit of the economic interests of any person with an interest in the land". We are almost at the stage of overlooking the economic interest of those who have an interest in the land. There is more to managing land than just agriculture and forestry. Those noble Lords who have read the debate in Committee in another place will note that there were discussions on such matters as festivals, concerts and events where fees were charged for entrance. With rural diversification, we need to look at this aspect. Land is being increasingly managed in other ways. If farming continues down its present course, land will have to be managed in a different way. People will have to use land for other purposes. Closure orders may be necessary in order to allow that diversity and for the countryside to be preserved. That is why I have included it within my definition.

9.45 p.m.

Lord McIntosh of Haringey

The noble Earl, Lord Caithness, got to the heart of the issue when he said that there is no statutory definition of land management in the Bill. If I may say so, the amendments tabled by the noble Lord, Lord Glentoran, attempt to increase the precision of the Bill rather than to reduce it.

We have considered carefully whether we need the statutory definition of land management in Clause 22. We have come to the conclusion that leaving the definition open will enable the bodies making the decisions about restrictions of access and exclusions—the Countryside Agency, the Countryside Council for Wales and the national parks authorities—to do so on the basis of the information before them without being constrained by a statutory definition of the activities and purposes that land management may cover.

In another place, Chris Mullin said that we wanted Clause 22 to be interpreted as flexibly as is necessary. If we define in the Bill the activities that might be included as land management, as the amendments would, we might prevent the decision-making bodies from approving a restriction for an activity that did not fall squarely within the statutory definition, despite the body being of the opinion that the restriction was justified.

It is for the countryside bodies in the first instance to indicate the criteria for land management restrictions. They will draw up draft guidance. I know that they will wish to consult widely, including with the relevant national access forum. We expect them to adopt criteria that fully protect the legitimate interests of the owners, occupiers and managers of land. I expect their interpretation to include provision for any of the activities listed in Amendment No. 265 if directions can be justified on a case by case basis.

I cannot resist drawing attention to the wording of Amendment No. 265, even though the noble Lord, Lord Glentoran, did not read it out. My favourite paragraph is (g), which says: use of the land for other lawful activities (whether or not of a commercial nature)". That covers use of the land for anything whatsoever. It reminds me of my favourite song about drinking. I am not going to sing it, but the poem goes:

• "If all be true that I do think,
• There are five reasons we should drink;
• Good wine—a friend—or being dry—
• Or lest we should be by and by—
• Or any other reason why".

The amendment is equivalent to "any other reason why".

We firmly believe that few activities will conflict with the new right of access. Listening to the comments of some noble Lords during some of our debates—although not necessarily on these amendments—you would imagine that the farming of and walking on open country were mutually incompatible. We do not subscribe to that view and we are not prepared to allow directions under Clause 22 to be used as a mechanism for excluding access to land on the flimsiest of pretexts. We do not expect that there will be widespread applications for additional restrictions on enclosures. Shooting is one example for which closure of the land would be likely to be necessary, but other activities might require only restrictions to the right of access, such as a requirement to keep to paths or to keep dogs on leads or to ban them altogether.

Clause 22 provides for the decision-making body to approve the minimum restriction necessary for the activity to take place, in order that the relevant countryside authorities may enable full use of the right of access consistent with the legitimate needs of land management, conservation and public safety.

Amendment No. 258 would allow a direction to be made on the grounds of land management and use. It is intended to clarify that directions may be made to restrict access while activities take place on the land that are perceived to fall outside traditional land management, such as shooting or motor trials. We are happy to confirm that, as was said in another place, in this context "land management" has a wide application, embracing not only agriculture, but other activities on the land that intrinsically require the use of the land to be managed, including sporting and connected activities, as well as commercial activities, such as the use of the land for motor sports. The amendment is not needed, because its purpose has already been achieved in the Bill.

Amendment No. 260 would allow for directions under Clause 22 to be made in the interests of conservation of wildlife. Directions on the grounds of nature conservation are dealt with under Clause 24 and do not need to be repeated here.

Amendments Nos. 261 and 262, taken together, would make it clear that "land management" was intended to include various moorland, sporting and traditional land management activities, together with recreational and other activities taking place with the agreement of the owner. As I said when I was talking about Amendment No. 258, the use made of land may entail a perfectly valid form of land management and therefore no further clarification would be required. Certainly, activities such as shoots and pest control could well justify applications for directions.

On the question of pest control, perhaps I may answer the noble Baroness, Lady Masham. I am confident that the Countryside Agency will wish to consult MAFF on the need for restrictions to allow landowners to address animal and plant health problems. Any closure of land under the plant and animal health Acts will take precedence over the right of access. I believe that that is the assurance that the noble Baroness required.

Finally, Amendment No. 264, in the name of the noble Earl, Lord Caithness, goes slightly further than Amendments Nos. 261 and 262 and embraces the, pursuit of the economic interests of any person with an interest in the land". We certainly believe that the right of access should not interfere with the proper economic interests of landowners; nor, indeed, do we expect that it will. We consider that the clause as drafted allows for that.

I am happy to assure all Members of the Committee who tabled the amendments that land management will cover less traditional forms of activity such as car rallies, pop festivals and war games as well as farming and shooting. That may be unwelcome to some Members. However, that is certainly the way we view the matter and we do not intend to have any restrictive definition of land management. We fear that the amendments would be restrictive in a way that I do not believe their proposers would wish.

Lord Rotherwick

I wonder why the Government want to go down that route. They say clearly that they are prepared to accept certain land management techniques. They talk of shooting and other activities, but I do not understand why they cannot be more specific now by saying which management techniques they accept. I do not understand why the Government are not prepared to do that but are prepared for the Countryside Agency to do so. That gives land managers a certain amount of uneasiness. It would be better if the Government could go that bit further to give them comfort. I believe that everyone would be much happier if that could be done.

Lord McIntosh of Haringey

I believe that if I were a landowner, which I certainly am not, I should take much comfort from knowing that the definition of land management was being provided by the Countryside Agency, the Countryside Council for Wales or the national park authority on the basis of the information before them and that it was not being distorted by a statutory definition imposed in October 2000 which might be different in future years. I am afraid that the problem is that any list of activities in any of the amendments, except, of course, the catch-all phrase at the end of Amendment No. 265, tends to imply the exclusion of those which are not listed. That is a well known principle in law and in legislation.

The Earl of Caithness

I am grateful to the noble Lord, Lord McIntosh of Haringey, for what he has said. It has relieved some of my concerns. I believe that there was common ground between us in much of what he said, particularly at the beginning. I was trying to get away from the idea that someone with an interest in land can go to the appropriate authority with a flimsy reason. I was trying to be helpful to the appropriate authority. My amendment is not restrictive. It merely includes certain types of work but is not exclusive. In fact, it allows people to go further than that. However, it gives some guidance as to the ambit both to the appropriate authority and to the land manager.

I should like to go away and read what the noble Lord, Lord McIntosh, said. I believe that he may have met most of my concerns but probably not all, and I reserve the right to come back at a later stage.

Lord Glentoran

I thank the noble Lord for his usual clear explanations and, in particular, for his anecdotal piece about Amendment No. 265. I felt that Amendment No. 258 was the all-emcompassing amendment that could have been of some use.

I hear what the noble Lord has said. The debate has been very useful and worth while. The fact that the noble Lord has said what he has said, and it is in Hansard for future reference, probably would suffice to reassure certainly me and others who may be concerned about this definition of management. I also understand that to some extent where the legal process is concerned it is sometimes better not to be too precise and to leave some flexibility. We will have another look at it, but, for the moment, I beg leave to withdraw these amendments.

Amendment, by leave, withdrawn.

[Amendments Nos. 259 to 265 not moved.]

Clause 22 agreed to.

Clause 23 [Avoidance of risk of fire or of danger to the public] [Amendment No. 266 not moved.]

Lord Glentoran moved Amendment No. 267 Page 14, line 9, leave out ("by reason of any exceptional conditions of weather,").

The noble Lord said: Clause 23 currently provides that weather conditions alone, and exceptional weather conditions at that, which would be difficult to define, are to be used to determine whether or not land should be closed for the purposes of fire prevention.

We feel that this is inadequate. The condition of the land is also a highly relevant factor when considering the need for closures to avoid risk of fire. The amendment would remove the reference to weather conditions so that closure could be considered on any grounds where fire risk had to be avoided.

I think that I can be brief because it is fairly self-explanatory but it is clearly a very serious possibility. We would like to feel that this amendment was acceptable to the noble Baroness and the Government on the basis of the fire risk. I beg to move.

Earl Peel

I would very much like to support this amendment. I accept that at first glance it may appear somewhat pedantic. I think that my noble friend has drawn attention to a very serious matter because, as he quite rightly says, it is not the weather as such, it is the condition of the ground that should determine what decisions are made and what closure orders should be imposed if necessary.

I can envisage a situation where—although I accept that, as the noble Baroness, Lady Masham, said yesterday, in North Yorkshire the weather has not been very good recently—there have been two or three weeks of intense heat and the heather is extremely dry and could be a fire risk. One may then have a week of rain and everybody thinks that the situation has redeemed itself. With one or two more days of sunshine, particularly on heathland as opposed to blanket bog, one could be very quickly back into the same situation again. It is the condition of the ground rather than the weather that counts. I need hardly remind your Lordships about the dangers of fire, both from a public sector and environmental point of view. Fires, particularly summer fires, can do immense environmental damage. I can bring a number to mind. There was a particularly bad one in 1976 on Rosedale on the North Yorkshire Moors and that ground has not recovered to this day. It has had quite a serious impact on that environment, with obvious effects on the bird species which use that part of the moor.

Therefore, this is a serious amendment. I do not suggest that the other amendments are not important, but this is of particular importance. As I said, it may look unimportant and appear to be pedantic but it is not. I hope very much that the Minister will take it extremely seriously.

10 p.m.

Lord Williamson of Horton

I invite the Government to look carefully at the wording of the current Bill. The phrase "exceptional conditions of weather" is quite difficult to interpret. So, irrespective of the argument as to whether it is the condition of the land or the weather, the Bill, as drafted, seems to be capable of causing some difficulty for the authorities who would have to take these decisions. Perhaps the wording could be looked at.

The Earl of Caithness

I must confess that I had not taken on board quite the relevance of this matter until this debate. When I listened to what my noble friend Lord Peel said, my mind went back to the Wildlife and Countryside Act 1981, as a result of which closure orders could be made to prevent shooting when land is under certain conditions.

In particular, I remember there being a prevention order made—and I think it was under that legislation, although I stand to be corrected because I am speaking entirely from memory—against shooting snipe. Although the weather at the time was absolutely fine, the previous weather conditions had been such that it was deemed wrong, because there had been so many hard frosts, to continue shooting. However, by the time the order was made, the weather had changed but the relevance was in relation to the ground conditions. It is in that regard that I support my noble friend Lord Peel. That is so particularly in relation to heather and moors because any Members of the Committee who have been involved in fighting a fire on a moor will know what a horrible and dangerous experience that can be. It takes more than a week of rain to soak a moor which has dried out.

Therefore, I ask the Minister to have another look at the wording of this.

Baroness Farrington of Ribbleton

At this time of night, it becomes difficult for all of us to concentrate. But my attention has been caught by various noble Lords referring to the very hot weather that occurs in Yorkshire, on the other side of the Pennines. I think I shall travel to Yorkshire more often!

Clause 23 allows the relevant authorities to make directions excluding or restricting public access in the interests of fire prevention by reason of exceptional weather conditions.

This amendment would remove the reference to exceptional weather as a precondition, so that closures could be considered on any grounds where fire risk needs to be minimised. We do not think that it is likely that conditions of high fire risk will occur independently of exceptional weather conditions. I have listened very carefully to the points made by Members of the Committee during this short debate.

We believe that the circumstances which have been outlined, where there has been a long period of dry weather followed by a short period of rain, would be covered by the Bill with the wording proposed because, even if the conditions no longer prevailed in terms of the immediate weather, the preceding weather conditions would have been exceptional. Therefore, the preceding weather conditions could be the reason for acting. The relevant authority would be able to make a direction in those circumstances.

It may be that there are other circumstances where there is a possible fire risk which has not arisen due to exceptional conditions of weather; for example, some types of vegetative cover may be flammable even in an ordinary summer. We do not believe that such circumstances are exceptional and, therefore, we do not believe that they are caused by unusual weather conditions. They are part of the fabric of the open countryside. We are not satisfied that they give sufficient reasons to restrict access to the land.

If we were to allow restrictions to be placed on public access in ordinary circumstances such as I have just described, that could mean that many parts of the countryside would be closed to the public throughout the summer months every year—the very time when such places are most popular. However, I can assure the noble Earl, Lord Peel, and other noble Lords that, where the fire risk arises as a result of something done on the land and would constitute a danger to the public, a direction may be made under Clause 23(1)(b). It is also possible that, in some circumstances where there is a risk of fire, a direction for nature conservation reasons may be made under Clause 24 on the advice of English Nature.

I hope that the reply that I have given has been detailed enough to give the reassurance that noble Lords have sought without denying access to the open countryside in many parts of the country in a way which, were we to go too far in the other direction, would deny access almost completely in the summer.

The Earl of Caithness

I am grateful to the noble Baroness for that reply. I had hoped that she would take this amendment away for consideration, but she led us on to Clause 24, and nature conservation. Such closure orders may be needed quickly. Can she reassure the Committee on the speed with which such decisions will be made? If there is a threat to nature conservation or a sudden hot spell, which Yorkshire has at regular intervals, the fire risk increases and action needs to be taken quickly.

Baroness Farrington of Ribbleton

Subject to confirmation of what I am about to say, I am certain that, within its terms of reference, English Nature would react with great speed in circumstances where there was the kind of risk to which the noble Earl has referred.

Lord Greaves

Would the Minister consider whether the word "exceptional" should be in this part of the Bill? I do not believe, for example, that the Meteorological Office would want to use a loose word like "exceptional" to describe weather. It talks about events that may occur once in five years or once in 50 years. Whether a particular weather condition is exceptional or not is a matter of opinion. What the weather is at a particular time is a matter of fact. It may help if the Government consider removing the word "exceptional", which at best is redundant and at worse inaccurate.

Lord Williamson of Horton

The noble Lord, Lord Greaves, in a sense is making the same point as I did. I am not necessarily in favour of removing a reference to the weather, as is proposed in the amendment, but the phrase "exceptional conditions of weather" will cause difficulties for the authority that has to take the decision. It is quite possible to have a continuously hot summer. So far in this debate we have talked only of Yorkshire, but there are other parts of the country where we have hot summers—they will get hotter too. There can be a hot summer, which is safe from the point of view of fire risk for a large number of months, but perhaps by September the situation may be sufficiently dangerous to make it necessary to have a closure. I do not like the phrase "exceptional conditions of weather". It could just be the cumulative effect of normal weather.

Baroness Farrington of Ribbleton

Come back Michael Fish! There is a difficulty in the points being raised by the noble Lords, Lord Greaves and Lord Williamson of Horton. If we were to remove the reference to "exceptional weather", the converse situation could be applied; that is, the normal pattern of weather in summer could be used as a reason for closing large areas of the countryside for long periods.

Lord Greaves

But then we come back to the point made by the noble Earl, Lord Caithness; that is, that it is a combination of the weather and its effect on the land that is important. Whatever the weather conditions, even if there had been a long hot summer, they may not have affected a specific moor very much and so the provision would not apply. It is the combination of the weather and the condition of the land that must be taken into consideration and the most important factor must be the condition of the land.

Baroness Farrington of Ribbleton

I understand the point being made by the noble Lord, Lord Greaves, but I have a concern that the solution he seeks to put forward could be used as a means of ensuring that public access is restricted in many areas for long periods of time.

I was asked by the noble Lord, Lord Williamson, whether I am prepared to reconsider the arguments put forward and see if they can be applied without denying people access to land for long periods of time in conditions that are normal for the vegetation in a specific part of the country. I do not want to mislead Members of the Committee by implying that we will come back and change the wording. However, everybody appears to seek the same objective. But there is a difference of opinion on how to achieve it without, on the one hand, reducing access too much and, on the other, still responding to exceptional circumstances.

Emergencies can be quickly dealt with under Clause 29. I promise to look carefully at all the arguments, without implying that the Government will definitely come back with an alternative.

Earl Peel

The noble Baroness implied that if the words were changed in the Bill to meet this amendment, it could result in large areas of land being closed for long periods of time, which I understand would be unacceptable. But the Government have constantly told us throughout the passage of this Bill, "Do not worry, the Countryside Agency will be reasonable and look after your interests". Now that the boot is on the other foot, does not that reasonableness apply just as well?

Baroness Farrington of Ribbleton

Of course. That is why I undertook to consider carefully the points that have been raised. Where there is a risk of fire and the need for a direction for reasons of nature conservation, that can be made speedily under Clause 24. I feel the noble Earl, Lord Peel, suspects me of a sleight of hand in my language. But I do not wish the situation to arise where, when we come back on Report, the noble Earl accuses me of bad faith because the Government considered the points carefully but remained of the opinion that the original wording was the best to achieve the objectives that we all want.

Earl Peel

I should never dream of accusing the Minister of bad faith and certainly I was not doing so in this case. But having heard the argument used constantly, "Do not worry, the Countryside Agency will look after your interests", I thought in this case it could be turned to our advantage. However, the noble Baroness does not accept my argument on that.

10.15 p.m.

Lord Glentoran

That has been a useful and valuable debate and I thank the Minister for her encouragement. The weather is subjective but the ground—what is growing or is dead on it and the type of terrain—is more relevant. I am sure that the Minister knows, but it might be worth recording, that the Peak District National Park Authority has a sophisticated system using the Meteorological Office and computers to assess fire risk. Considering all the work that will be done, the time is coming to make our fire prevention a little more sophisticated than relying on the weather.

Baroness Farrington of Ribbleton

The noble Lord raised the issue of the Peak District National Park Authority which, I understand, considers a range of criteria in deciding whether to use its powers of closure under the National Park and Access to the Countryside Act 1949 on access agreement land. The authority's powers under the 1949 Act are based on a similar form of words to those which appear in the Bill and we are not aware of any representations that those powers have been found wanting.

Lord Glentoran

I thank the noble Baroness for that intervention. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Miller of Chilthorne Domer moved Amendment No. 268: Page 14, line 13, after ("anything") insert ("being").

The noble Baroness said: The amendment seeks to keep Clause 23 in the present as opposed to the past or in the future. The clause deals with things done or proposed to be done. Most people would understand that to refer to the past and the future. Therefore, the drafting opens up the possibility of saying that because something was done in the past the land should be restricted or closed. I refer, for example, to Ministry of Defence land which, once it has been taken out of use and made reasonably safe, need not continue to be closed. However, the provision could apply to all kinds of situations so the amendment suggests the wording "being" done, because that work would be a danger to the public. I beg to move.

The Earl of Selborne

Normally I follow the noble Baroness because she is the sole of clarity, but on this occasion I am slightly mystified. Is it not possible that something in the past tense might be a good reason for not allowing people on to the land? Let us suppose, for example, that for good reason the soil had been fumigated. It might then be most undesirable to give people access over it. Does she intend that people cannot be restricted from access in such circumstances?

Baroness Miller of Chilthorne Domer

When tabling the amendment I was more concerned that the Bill appeared to preclude many things which were "being" done. They are not mentioned. It is possible that the noble Earl is correct and perhaps I should have drafted an amendment which read "being done or proposed to be done". However, I believe that the exclusion of the present tense is dangerous.

Baroness Byford

I rise to speak to Amendments Nos. 269 and 272 in the group. I shall be brief. The first amendment refers to the "conditions prevailing" as well as to the operations taking place or proposed. Clause 23(1)(a) refers to the weather conditions and paragraph (b) refers to "anything done, or proposed to be done". That does not cover the spread of bracken, which I have referred to, or to a plague of rabbits or other vermin. The amendment provides reference to "conditions prevailing" in order to cover those points.

Amendment No. 272, inserting the words "an indefinite period", provides for exclusion or restriction for an indefinite period. It is not possible to quantify the likely period of closure for such things as weather conditions. The amendment provides that closure or restriction may be for an indefinite period.

Baroness Farrington of Ribbleton

Clause 23(1)(b) enables the relevant authority to exclude or restrict access to land to protect the public from any danger by reason of anything done, or proposed to be done, on the land. The expression "anything done" in this provision refers to things done in the past, while "proposed to be done" looks to the future.

The amendment moved by the noble Baroness, Lady Miller of Chilthorne Domer, would remove scope for directions to be imposed with respect to manmade hazards which already exist on the land but where there is no continuing activity. It would mean, for example, that directions could not be made if necessary to exclude access to land with disused mine shafts or a quarry which still constituted a danger.

There is no significance in the absence of an explicit reference to the present tense. As drafted, the Bill will cover things that are past, present and to come. In terms of legislation, "done" can mean "to be done", "having been done", "to be done" or "being done now". I hope that, at the very least, the noble Earl accepts that I have made the noble Baroness sound clearer in comparison.

Where land containing such hazards is open country we believe it is important that there should be discretion for the relevant authority to be able to exclude or restrict access to the land if it believes it necessary to avoid danger to the public. Of course, we do not believe that directions would be commonly required: in most cases, it would be reasonable for the public to take suitable precautions for their own safety.

Amendment No. 269 adds that directions may be made under Clause 23(1)(b) by reason of "conditions prevailing" on the land. I must inform the noble Baroness, Lady Byford, that that is a very general and vague amendment. The Bill already provides that directions under Clause 23 may be made because of danger to the public by virtue of something done on the land. We do not believe that it is necessary to go even wider than that. The amendment might allow directions to be made because, for example, rain had made the ground a little slippery, or there was deep snow on a fell top. Those are not the kinds of reasons for which land should be closed. Instead, we have repeatedly made clear that users must take responsibility for their own safety in respect of such natural hazards. The Bill already provides that landowners owe no liability to walkers arising from any natural features of the landscape.

We believe that Clause 23(1)(b) provides sufficient flexibility to address the need to close land because of any man-made hazards and see no reason to provide for a mechanism to restrict access in consequence of natural hazards, which are part and parcel of the experience of walking in the countryside.

Amendment No. 272 would enable directions under Clause 23 to be made for an indefinite period. We have provided that such directions must be for a specified period, which reflects the circumstances in which directions under Clause 23 are likely to be needed. Where a closure is needed because of fire risk caused by exceptional weather there will be no need for closures to be indefinite. Similarly, if anything done on the land is likely to pose a danger to the public generally there will be a need to restrict access for only a limited period of time. If there are more long-term dangers, such as unprotected mine shafts, restrictions may be directed for a longer specified period, such as five or 10 years, and renewed if the direction remains necessary on its expiry.

I hope that I have covered the points raised by both noble Baronesses and, for the reasons given, ask that the amendments not be pressed.

Baroness Miller of Chilthorne Domer

On the first day in Committee some noble Lords referred to their Latin teachers. I believe that my teacher would have been very upset to hear that a past tense could apply to the present. If, however, that is what legal jargon does in Bills 1 accept the assurances of the noble Baroness and seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 269 to 275 not moved.]

Clause 23 agreed to.

Clause 24 [Nature conservation and heritage preservation]:

Lord Glentoran moved Amendment No. 276: Page 15, line 12, at end insert— ("( ) the purpose of protecting any dry stone wall;").

The noble Lord said: Amendment No. 276 extends Clause 24 of the Bill to cover certain matters that we consider to be of particular value. I refer to stone walls and water. Amendment No. 276 refers to stone walls and Amendment No. 277 refers to water. The Bill makes provision in the clause for excluding or restricting access land in the interests of wildlife and habitat conservation or to protect sites of historical or archaeological importance. Dry stone walls are a feature of historical and archaeological importance across the country, as is water which falls and collects over and above ground and on which much of our landscape and wildlife relies.

The amendments are designed to protect those features. There are areas that I personally know of where there are dry stone walls. They are beautiful. In the mountains of Mourne there has been a government scheme to encourage people to rebuild their dry stone walls. The effect of that is fantastic. The walls need to be protected. Noble Lords will know that if a person attempts to climb a dry stone wall, unless there are stones specifically placed, which there are by the shepherds and the sheep carers, it will fall down. It is as basic as that. They are solid to weather. They are solid to most animals but not to the two-legged ones. It does not apply in Northern Ireland, but in England and Wales there must be areas where there are particularly precious areas of dry stone walling which are hundreds of years old.

Water probably speaks for itself. Most of our water from reservoirs and so on ends up in someone's tummy sooner or later. Any form of water pollution or damaging of the water seams and springs where the water comes from is serious. I do not suppose there are many areas where the issue is particularly sensitive, but there must be some. I beg to move.

Baroness Young of Old Scone

I should like to defend Clause 24 against all comers. Clause 24 is the nature conservation clause in the Bill. It is specifically constructed to give a clear role to the advisory bodies if exclusions and restrictions are to be enforced. Muddying the water quality—if noble Lords will pardon the pun on water quality—may not he in the best interests of clarity in this case.

In Clause 2(1)(a) stone walls get their place in the sun on the face of the Bill. Clause 2(1)(a) specifically states that access is only permitted if a person does not break or damage any boundary area. I assume that stone walls are boundaries. Stone walls have had their go. Clause 24 is the opportunity for nature conservation to have its go. I have failed to think of an example of a restriction or an exclusion on behalf of water quality. Therefore, I feel justified in saying that Clause 24 ought to remain as it is, focusing on exclusions and restrictions for nature conservation and heritage.

10.30 p.m.

Lord Greaves

I was working out whether to speak on this clause or the next clause. What I should like to say is not directly related to dry stone walls—much as I love and live among them—and is not directly related to the amendments. It relates to the clause.

As the noble Baroness has just said, this is an important clause so far as concerns nature conservation and protecting wildlife in access areas. I should like to speak from the point of view of climbers. I do not disagree with the clause and would not wish it to be tampered with. I stand firm with the noble Baroness, Lady Young, on that. At the moment voluntary restrictions are agreed by climbers—no one else is mad enough to scale rock faces. Where those voluntary restrictions relating to climbers are working, they should not be pushed aside by blanket and more bureaucratic statutory restrictions. I shall explain why.

By their very nature, such statutory restrictions, directions, and so on, are relatively blunt instruments. Perhaps I may tell the Committee what happens at present. Restrictions on climbing where birds are nesting are negotiated in detail—usually each year—by local representatives of the British Mountaineering Council and the RSPB. They are negotiated piece of rock by piece of rock, year by year, so that the restrictions are put on when they are necessary and removed when they are not necessary.

I shall give some examples. There is a crag in the Lake District where the restriction was provisionally put on in the spring of this year in case the peregrines nested there. However, the option was left open to lift the restriction. I believe that was done because the peregrines decided not to nest there this year. On a long stretch of limestone coastline in south Pembrokeshire the restrictions are put on year by year. It is done literally route by route, climb by climb. One can climb on one part of the cliff up to a certain point; one cannot climb on the rest until perhaps the end of July. That kind of flexibility can be achieved only by voluntary restriction. By its very nature, it would not lend itself to statutory restrictions. Plastic markers are put on the cliffs showing where one can climb and there is a good deal of publicity about it. The point is that it works. If it did not work, I would not be arguing for it.

I hope that the provisions of the Bill will not disrupt arrangements which work and work with the consent of climbers. They are enforced by peer pressure as much as anything else. Climbers know that if they climb on routes where there is a bird ban—for a certain month in any year—they put at risk the opportunity to climb on that cliff. Statutory restrictions would no doubt enforce such a ban, but the present system works by the consent of individual climbers, who are a very anarchic lot. They obey the restrictions because it is in everyone's interest to do so. The great worry is that if blanket bans are imposed, including bans on routes where they are not necessary, climbers will say, "The ban is nonsense", and then start to flout the bans. Then the whole voluntary system, which covers large areas of the country, works very well indeed by agreement and consent, and has the support of climbers, the RSPB and conservation interests, will break down.

I make those comments about the way in which the legislation should operate. I do not in any way suggest that the legislation should not be passed in its present form.

Lord Whitty

I endorse the views expressed by my noble friend Lady Young of Old Scone. This clause is pre-eminently concerned with nature conservation. For that reason I believe that it should stand part of the Bill and other considerations are not relevant here. However, I can reassure the noble Lord, Lord Greaves, that—although his remarks are not directly related and he commented that he did want the clause to stand part of the Bill—I see no reason why the restrictions imposed under the Bill should cut across or be more onerous than any voluntary arrangements currently in place. Clause 24(2)(c) allows for restrictions to be imposed only when required, for example, when a rare bird is present.

So far as concerns the detail of the two amendments, dry stone walls are covered in part elsewhere, as was pointed out by my noble friend. As the clause mainly concerns conservation, the protection of the environment and wildlife, were a walker to cause damage to a wall or to pollute a water course, he or she would clearly be guilty of a criminal offence on the one hand and would lose the right of access on the other. That is already covered in the Bill.

Moreover, it is difficult to conceive of many cases where the presence of walkers on the land as such would threaten water quality or cause pollution to drinking water. Even in remote areas, it is rare for water from springs to be used directly as drinking water. Even in those cases, the Bill provides that the right of open-air recreation does not include a right to bathe. Being in the water is not covered by the right of access.

Similarly should any particular problems he encountered as regards water sources, we would consider introducing by-laws. That is an area where that course would be appropriate. Nevertheless, the Bill provides additional safeguards. Clause 24 already provides for the protection of structures of historic or traditional interest. Dry stone walls may well fall into that category. Clause 24(3)(b) also refers to heritage protection, which would include traditional features.

The protection of water supplies could fall within the existing nature conservation purposes set out in the clause. Any person with an interest in the land who believes that there is a risk of damage to dry stone walls or deterioration of water quality as a result of access because of special problems in the area, should be able to seek restrictions by means of directions under Clause 22. It would also be open to him to address any problems by appropriate management measures, such as the creation of new means of access which reduce the need for walkers to cross walls in order to gain access to the land.

For those reasons, I do not think that the amendments are necessary. It is best to keep Clause 24 related firmly to nature conservation and heritage preservation and not, as my noble friend said, to muddy the waters with additional factors that are adequately covered elsewhere. I hope that the noble Lord will not pursue his amendment.

Lord Glentoran

I thank the Minister for that explanation. I am quite comfortably reassured that, as the noble Baroness, Lady Young, commented, dry stone walls will fare well out in the sun and that water will be cared for. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 277 not moved]

On Question, Whether Clause 24 shall stand part of the Bill?

The Earl of Selborne

On the question of whether the clause should stand part of the Bill, perhaps I may seek an assurance from the Minister. I heard the noble Baroness, Lady Young, extol the clause as an important one and I agree with her. However, I wanted to ensure that we all agree that it will achieve as much as we hope.

The kernel of the clause lies in subsection (3)(a) which spells out that, the purpose of conserving flora and fauna or geological or physiographical features of the land in question". The concern caused by unlimited access to sensitive areas is often due to the fear of erosion to the site. Over-use of tracks leads to erosion and to soil movement of landscape features, which are clearly undesirable.

This is not covered by conserving flora and fauna, that is for sure. I am not even sure it is covered by the word "geological". After all, it takes an awful lot to threaten the geology of anything if all one is doing is moving the particles. It may well be covered by the words "physiographical features of the land". That is what I seek the Minister's assurance about. I suspect that words like "topography" or even "geomorphology" may be more appropriate in order to deal with what is clearly by far the largest concern about access—that is, the effect of unbridled access channelled into sensitive areas, causing the erosion with which we are all familiar, particularly in the uplands. Perhaps the Minister can assure me that those areas suffering from erosion will be covered by subsection (3)(a).

Lord Whitty

Where erosion through excessive numbers causes damage to the land or to the access itself, it could fall within the clause, depending on the topography, under the reference to physiographical. If it is causing a problem for land management—shifting soil and so on—it could come under Clause 22, the land management clause. So it is covered eit her way.

Clause 24 agreed to.

Clause 25 [Directions by relevant authority: general]:

Lord Glentoran moved Amendment No. 278: Page 15, line 42, at end insert— ("(1A) In giving, revoking or varying any direction under section 22, 23 or 24, the relevant authority shall take reasonable steps to further the conservation and enhancement of the flora, fauna, or geological or physiographical features of the land thereby affected.").

The noble Lord said: This is a small amendment which seeks to spread the protection mantel. New Section 28E of the 1981 Act, inserted by Schedule 8 at page 95 of the Bill, provides that the Countryside Agency, the Countryside Council for Wales, the national park authorities and local authorities have a new duty in exercising any of their functions to "take reasonable steps" to further the conservation and enhancement of SSSIs. The Countryside Agency, the Countryside Council for Wales and national park authorities will need to apply this duty in giving, revoking or varying any directions regarding closure or restrictions made in relation to access land which is also notified as an SSSI.

While welcome, this provision should be extended to all access land, much of which, although not notified as an SSSI, may also be of considerable ecological quality. The amendment would accordingly extend this duty to all access land. I am sure that we can all think of many small areas of land which are particularly special, whether it be for various lichens on the rocks, rare wild orchids growing in remote places or other precious things which need protection. I beg to move.

Earl Peel

My noble friend's amendment raises an interesting question which I should like to put to the Minister. Before I do so, it would probably help the Committee if I now make a few points in relation to Amendment No. 304, which stands in my name, and not speak to that amendment later.

The question I put to the Minister is this. As my noble friend said, when the access authority gives, revokes or varies any direction under Clauses 22, 23 and 24 in relation to a site of special scientific interest, will the authority be bound by the duty under Part III of the Bill in relation specifically to new Section 28E, which is an amendment to the 1981 Act; and will that require the access authority to take reasonable steps consistent with its functions to further the enhancement of SSSIs? I do not know whether the Minister has had an opportunity to consider that relationship, but it poses an interesting question. It would go some way towards appeasing the difficulties that I have with the Bill in regard to what [ have referred to previously as the precautionary principle.

What has constantly concerned me is the question of precedent, and whether access will take precedence over conservation. On a number of occasions I have asked the Minister whether he is satisfied that sufficient research has been done on the correlation between access and ground-nesting birds. To date, the noble Lord has not given me a satisfactory answer.

That leads to another basic question. I am glad that the noble Baroness, Lady Young of Old Scone, is in her place. I shall be extremely interested to hear her opinion on this. Are the Government satisfied that the Countryside Agency has a sufficient conservation brief in relation to the many aspects of the Bill with which it will ultimately be dealing?

I recall a conference that I attended some time ago, at which the noble Baroness, Lady Young, was present (not president!). There was indeed a representative there from the Countryside Agency. The question was put to him whether it was felt that the agency had a conservation brief. The response that we received was a rather surprising one. He implied that the answer was no. That set alarm bells ringing. When I thought of the enormous responsibilities that have been given to the agency under the Bill, and given the enormous impact that so much of the Bill is likely to have on conservation, I began to wonder.

My question is twofold. First, will the Minister comment on the relationship between new Section 28E relating to Part III and the access provisions in Part I? Again, I return to the question: is the precautionary principle, or even the Sandford principle, which goes back to 1974, to prevail in conditions where a conflict is likely to exist?

10.45 p.m.

Baroness Young of Old Scone

I wonder if I can help the Committee on this point. In these circumstances it is not only a question of belt-and-braces; we also have our trousers held up by a piece of string!

Clause 25, in terms of revocations, requires the relevant authorities to ask the advice of the people of whom they asked advice originally when they put in place the restriction or exclusion. So I believe that there is protection from any change in the provisions in terms of not taking advice from nature conservation organisations.

The second point—the "braces" element of the safeguards—is the one made by the noble Earl in relation to Part III of the Bill and Section 28E authorities. The relevant authorities are indeed Section 28E authorities, and they will have responsibilities under Part III to ensure that nature conservation is taken account of. That is the belt-and-braces part.

But there is also, as I said, a piece of string. I am delighted to announce for about the 14th time that both English Nature and the Countryside Agency have made a formal agreement, which we signed on 10th July—in rather bizarre circumstances. It was supposed to be signed with much resplendent photography and press attention on the top of a hill somewhere in Hampshire. Unfortunately, I got stuck for four hours on a train that broke down, so we signed it by mobile phone! Nevertheless, it is now a formal document between English Nature and the Countryside Agency. They have agreed to adopt what is called the "Sandford principle", which says that where nature conservation and access are compatible, provisions will exist to support both concepts. But where there is conflict and nature conservation and access cannot be reconciled, English Nature and the Countryside Agency have jointly agreed that nature conservation will prevail. That is now enshrined in our compact, which was signed by way of the wonders of modern technology. I hope that all three of those provisions will mean that we are unlikely to to go too far astray in this area.

Lord Whitty

I do not think that I can add much to what my noble friend said in relation to the requirements on conservation and the co-operation between English Nature and the Countryside Agency as regards the powers under new Section 28E to the 1981 Act, which refer back to the exercise of powers under this clause. I am grateful to my noble friend. At least I was, until she started her attack on the British transport system.

More generally, noble Lords may not be aware that, when exercising any functions relating to land, public bodies already have an existing duty under Section 11 of the Countryside Act 1968 to have regard to the desirability of conserving the natural beauty and amenity of the countryside. This specifically includes the conservation of its flora, fauna and geological and physiographical features. I hope that the noble Lord is reassured in that respect. In addition, there are the powers on SSSIs which are given new weight in Part III of this Bill and to which the new arrangement between the Countryside Agency and English Nature applies, as explained by my noble friend Lady Young. So the safeguards are in place.

As regards any serious threat to wildlife outside SSSIs, I believe that there will be relatively few sensitive areas; indeed, most of those sensitive areas will almost certainly be within SSSIs. In any case, we have given the widest powers to relevant authorities to enable them to make directions under Clause 14 to exclude or restrict access specifically for the purposes of nature conservation. Therefore, we believe that a further measure along the lines suggested is unnecessary. I hope that the noble Lord will not pursue the matter.

Lord Glentoran

Again, I thank the Minister for his explanation. I also thank the noble Baroness, Lady Young of Old Scone, for her reassurances. Indeed, to hear them from someone with all the knowledge and authority that she has encourages me to believe that we are fairly safe, pretty safe, or even very safe—

Baroness Young of Old Scone

Perhaps I could suggest an amendment here: we are quite safe.

Lord Glentoran

I shall accept the noble Baroness's suggestion that we are "quite safe" in this area.

When moving my amendment, I was also concerned about those areas outside SSSIs. It has crossed my mind from time to time—as is the case with others—that, as we go through this Bill and things start to happen, there will be a considerable concentration of effort and resources on SSSIs and, to some extent, on AONBs. That is where the larger numbers of people will roam; indeed, the through-put of human beings will be greatest in those areas that are well advertised and promoted.

As I mentioned earlier, there are many very special little areas with special attractions that will not form part of SSSIs because they are part of private land and have been nurtured and looked after for many years. I am encouraged by what the Minister said about such areas; namely, that there are provisions within the Bill which will afford them some protection. In those circumstances, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clause 26 [Defence or national security]:

[Amendment No. 279 not moved.]

Lord Whitty moved Amendment No. 280: Page 17, line 5, at end insert—

1. ("(6) If in any calendar year the Secretary of State reviews a defence direction, he shall—
   1. (a) prepare a report on all reviews of defence directions which he has undertaken during that year, and
   2. (b) lay a copy of the report before each House of Parliament.
2. (7) In subsection (6) "defence direction" means a direction given under this section for the purposes of defence.").

The noble Lord said: During discussion of this Bill in another place my honourable friend Chris Mullin agreed to consider an amendment tabled by David Heath, the Liberal Democrat Member for Somerton and Frome. We very much agree with the reason for that amendment; namely, that there should be effective scrutiny of directions for long-term closures or restrictions on defence grounds.

My right honourable friend the Minister for the Environment made clear in another place that the Government would consider the most appropriate way to meet the concerns raised. We concluded that we needed the amendment which I now move. The amendment will require the Secretary of State to prepare and lay before Parliament a report on all reviews of defence directions under Clause 26 which have been undertaken in a given year. I believe that the amendment demonstrates that the Government are willing to listen to genuine points of concern and can provide a means of reconciling the demand for greater public access with the need not to compromise vital defence interests. I beg to move.

Baroness Byford

I thank the Minister for clarifying government Amendment No. 280. I read with interest the debate in another place but I was somewhat unclear about its outcome. We are anxious to get as much access land available as possible for everyone to use. However, people are anxious that on some of these sites there may still be unexploded bombs. I believe that Salisbury Plain was mentioned in another place as a possible access site. I may be mistaken but I believe that there may still be an unknown quantity of unexploded shells on these sites. I hope that the Minister will clarify that matter.

Lord Burnham

Which Secretary of State is involved?

Baroness Miller of Chilthorne Domer

I thank the Minister for moving this amendment. I believe that my honourable friend in another place, David Heath, will be pleased to see it. The public have felt strongly that Ministry of Defence land should be considered with a view to permitting public access. The amendment goes a long way to meeting that objective in its mention of reviews and laying a report before Parliament. I thank the Minister for the amendment.

Lord Whitty

I am grateful for that support. As regards the safety aspect of munitions, as part of any review the Ministry of Defence would have to assess not only the need to maintain restrictions for defence reasons but also whether it was safe to open sites for public access. I was asked which Secretary of State would be involved in this matter. Legally speaking, the Secretary of State is a single entity. Therefore we do not in legislation describe the different roles of different Secretaries of State. The restrictions we are discussing are clearly DETR restrictions but the Secretary of State for Defence will be involved in the review. That matter was mentioned in the Ministry of Defence document, The Strategy for the Defence Estate, which was published earlier this year. That ministry will be responsible for assessing the military interest in keeping a site closed or otherwise.

Baroness Byford

I hope that I may press the Minister a little further. I am not involved in military matters and therefore I may ask my next question from ignorance. Presumably the relevant Minister may not know accurately where the problems we have discussed may arise. Perhaps the noble Lord will tell me that that is not the case. If they do not know where problems may arise, it will be a costly exercise to find that out. I do not know how one goes about declaring land "clean land" that is safe for people to walk on. I understand that there are some areas of land not used for that purpose. I am still unclear. Will the Minister take back the amendment, or bring back some provision at the next stage? I do not understand how it will be achieved.

11 p.m.

Lord Whitty

I am not much of a military expert myself. Clearly the responsibility for management of these sites at present is a responsibility for the Ministry of Defence. Most military training areas—they will include target practice areas and so on—will be excluded from the right of access under military bylaws. In terms of the restrictions and the by-laws the reviews would need to assess the safety conditions. As regards some, sites there may be safety problems in part of a site, but not the whole site. That does not necessarily oblige the Ministry of Defence to spend millions clearing the site. It needs to asses the risk at each of those sites and exclude areas where there is still a risk.

On Question, amendment agreed to.

On Question, Whether Clause 26, as amended, stand part of the Bill?

The Earl of Selborne

We referred to Clause 24 as a jewel in the Bill for nature conservation. One has to recognise that Clause 26 is equally effective simply because the Ministry of Defence has a peerless reputation for wildlife conservation. It is no accident. The reason that it has some of the best large estates with wildlife which is not seen any more outside Ministry of Defence land is that there has been limited access to that land over the years. While I recognise that Clause 26 requires that Ministry of Defence land or other land can be restricted only on grounds of defence or national security it is, nevertheless, a happy chance for nature conservation that this clause exists. Without it, as I think that we have recognised so many other times in the Bill, it would be incompatible to keep this high quality nature conservation and have the access which might otherwise be available.

Lord Whitty

In so far as that remark requires a comment, let me say that it is correct so far as it goes and does not challenge the purposes of Clause 26. While it is true that in recent decades the Ministry of Defence has a good record in respect of nature conservation, it is also true, regrettably, that some military land is severely environmentally damaged because of the use to which the military have put it. Taking it out of that context would improve the nature situation. Both situations would be taken into account when assessing whether we should lift the restriction.

Clause 26, as amended, agreed to.

Clause 27 [Reference by relevant advisory body]: [Amendments Nos. 281 to 285 not moved.]

Clause 27 agreed to.

Clause 28 [Appeal by person interested in land]: [Amendments Nos. 286 to 291 not moved.]

Clause 28 agreed to.

Clause 29 agreed to.

Clause 30 [Regulations relating to exclusion or restriction of access]:

Baroness Byford moved Amendment No. 292: Page 18, line 32, leave out paragraph (e).

The noble Baroness said: In moving the amendment, I speak also to Amendment No. 293.

Amendment No. 292 deals with the regulations governing closures of common land. Clause 30(1)(e) provides for the regulations to restrict applications from commoners for closures of land management or the avoidance of risk of fire or danger (Clauses 22 and 23) where the landed interest is that of a commoner. The inclusion of such a provision might well restrict the ability of commoners to close land. That would interfere with their legitimate land management needs.

Each commoner may have his own hefted flock, for which he will require a closure. The Government have stressed that the right of access should not unduly impose on land management interests, but subsection (1)(e) risks doing so for commoners. The rights of a commoner trying to make a living on access land should not take second place to those of walkers who use the access land. By deleting the paragraph, the amendment would result in commoners being treated in the same way as any other interest in the land. An alternative approach would be to provide that any regulations made under that paragraph must not act to the detriment of the use or management of the land by commoners.

Amendment No. 293 would make notification of closures the responsibility of the relevant authorities, not of owners. Subsection (1)(i) provides that regulations may make provision as to the steps to be taken by persons interested in the land, relevant authorities and the countryside bodies in informing the public about restrictions or closures. It is surprising that owners might be expected to take any steps to inform the public about restrictions and closures. They have not asked for the new right. The Countryside Agency, the Countryside Council for Wales and the national parks authorities should undertake to notify users of closures, as is currently the case in the Peak District, for example.

Requiring owners or occupiers to notify closures or restrictions to the public will necessarily involve costs in placing notices on the site or advertisements in the papers, as well as in the time lost to their business. If numerous closures are needed every year, those costs could be substantial and should be borne by the public purse rather than by the owners.

The Government must remember that any individual required to expend money for the benefit of the public should receive compensation for that expenditure. I believe that the Government have said that that will be the case. If not, there could be a breach of the Human Rights Act 1998. There is no compensation provision in the Bill. The amendment would remove the possibility of regulations being made to require owners to inform the public about restrictions and closures. That duty would then lie solely with the relevant authorities. I beg to move.

Lord McIntosh of Haringey

Subsection (1)(e) was introduced by the Government on Report in another place. It was not in the Bill originally. We introduced it to address two problems. The first was the possibility that on some areas of common land grazed by many commoners, it would be desirable to require the commoners, or a number of them, to apply jointly for any direction to restrict or exclude access. A joint application would demonstrate that there was a real need for a direction and that the commoners were prepared to enforce any direction as a body.

It would be absurd if the relevant authorities were required—as they would be without the paragraph—to consider separate applications from, say, 100 commoners grazing on a stretch of moor, each of which sought different restrictions or exclusions for different periods. An individual commoner may still seek a direction in respect of the land on which his flock is hefted, but it would impracticable to apply and enforce directions in respect of such units. It is far better that commoners should agree among themselves what restrictions, if any, are required, and submit a joint application representing all or a majority of them.

The second problem is that regulations may require confirmation that the applicants have the power to enforce any direction given, by demonstrating, for example, that the commoners have the right to exclude trespassers from the land.

The effect of a direction is to remove or restrict the public right of access over land. Thus, the public will lose the statutory right if they are in breach of the direction. However, it is quite possible that the rights of commoners on access land may not extend to excluding trespassers. That is normally the right of the owner or occupier and their agents.

Therefore, when regulations are framed on applications from commoners, it may be desirable to ensure that the applicants will have some effective means of enforcing a direction; for example, that the landowner has authorised the commoners to act as his agents in excluding trespassers or that the access authority, using its wardens, has agreed to enforce the direction with the approval of the landowner. That was a serious addition to the Bill at Report stage in another place. It was added for good reasons and I hope that the noble Baroness, Lady Byford, will not seek to take it out.

Amendment No. 293 would remove the—

Earl Peel

Before the noble Lord moves on, I wonder whether I may ask him a question. I believe that what he said about a joint application is absolutely right; otherwise, it could in certain circumstances get out of hand. However, we must not forget that, in addition to grazing rights, other rights exist on commons. There are rights of turbary, rights of piscary and rights of estovers, which sometimes are held by people who do not have the grazing rights. I wonder whether those other rights-holders on commons would have to be approached if the joint application was submitted.

Lord McIntosh of Haringey

If it affected the issue of access, yes, they would have to be approached because the purpose of paragraph (e) is that we are able to frame amendments which provide exactly for that. If, on the other hand, those other rights did not affect access to the land, they would not have to be considered. However, that is the reason for putting the matter into regulations rather than trying to frame it on the face of the Bill.

Amendment No. 293 relates to Clause 30(1)(i), which allows the Secretary of State and the National Assembly for Wales to make regulations which prescribe the steps to be taken by various bodies to inform the public about the exclusion or restriction of access under Chapter II. It makes clear that such steps could include the display of notices on the affected land. The amendment would remove the power for the regulations to prescribe the steps.

Where a landowner or anyone else with an interest wishes to exclude or restrict access under the provisions in Chapter II, it will be in his own interest that such restrictions are brought home to the public. We have already described the steps which the Countryside Agency is taking to ensure that information about restrictions is made widely available to the public, including plans for an Internet website and a telephone hotline. However, there will also be a place for restrictions to be publicised at a local level. That could be achieved by displaying notices about the effect of restrictions at principal points of access. Sometimes it may be enough for the landowner or his agents simply to inform anyone who wanders on to the land of the restrictions in force.

In some areas, access authorities, working through the warden service, may offer assistance to landowners in providing local publicity. We have already undertaken in debate on Amendment No. 223 to consider an amendment to Clause 18 which would allow wardens to be appointed for the specific purpose of enforcing exclusions and restrictions under Chapter II.

In other areas it may be appropriate for the landowner to arrange for notices to be posted or issued. Where the restrictions in force relate sensibly to operational requirements, that should not be an excessive burden, as there will be a need for the landowner to have a presence on the land for the purposes for which the restrictions have been sought. Regulations will be able to prescribe the form of any notices displayed on the land, as well as any requirements for displaying them. That will help to ensure clarity and consistency about the nature of the restrictions in force.

Of course, the regulations should not impose detailed, burdensome requirements about the number and location of the notices. It will be in the interests of the owner to ensure that sufficient notices are in place, but it may be sensible if regulations prescribe the form of those notices.

However, we do not agree that regulations should not impose any requirements on landowners. It would be absurd if there were a requirement on some other party, presumably the warden service, to publicise the closure of any parcels of land on every occasion that the landowner chose to exercise his discretion to close under Clause 21. As we have seen, potentially one landowner could choose to close each of 100 separate parcels of land on 28 days in each year for any reason. Publicising these closures would keep one warden employed full time on entirely unproductive work.

If landowners choose to exercise their discretion in this way, it is right that the primary responsibility for informing the public should rest with them. In cases where there is a potential risk to public safety it may be entirely proper for the warden service to help them and I would expect access authorities to be positive about any requests for help. We think that, while it will be important to avoid any undue burden on landowners, the powers for regulations to prescribe a role for landowners are justified and should remain in the Bill.

I turn to Amendment No 294.

Baroness Byford

I stopped because there seemed to be a little confusion at that time. I have not spoken to it yet.

Lord McIntosh of Haringey

We will deal with that in a minute. I say another word to the noble Earl, Lord Peel, on his intervention. It probably would not be the case that a regulator would require different grazing common right holders to join in an application for a direction. That cannot be right.

Earl Peel

The noble Lord has given me the answer for which I was hoping.

Lord McIntosh of Haringey

It was all right, was it not?

Earl Peel

Yes. It was absolutely fine. It was a very good effort for a Londoner.

11.15 p.m.

Baroness Byford

I thank the noble Lord the Minister for his response. In relation to Amendment No. 292, I appreciate that where there are many people who share common grazing a joint approach is the most sensible way. I fully understand that.

I am slightly less happy with the response to Amendment No. 293. I would like to think about that. I thought my understanding, having read Hansard on the debate in the other place, was that Mr Meacher said that it would not be a cost that had to be borne by land managers. I will look carefully again in my papers. My understanding was that the agency would bear quite a bit of this cost. Perhaps it is something that we can discuss. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 293 not moved.]

Clause 31 [Guidance by countryside bodies to National Park Authorities]:

Baroness Byford moved Amendment No. 294: Page 19, line 10, leave out ("may") and insert ("and the Nature Conservancy Council for England may jointly").

The noble Baroness said: We consider it is important that any guidance produced by the Countryside Agency under Clause 31(1) for the national parks authorities and the Forestry Commission regarding their duty under Chapter 2 and Clause 20 respectively takes full account of the need to conserve flora, fauna and geological and physiological features.

I am delighted with the debate we have just had with the noble Earl, Lord Peel, and the noble Baroness, Lady Young of Old Scone. However, there is no provision for expert advice from English Nature to be taken into account by the agency in preparing the guidance unless the conversation we have just had overrides my understanding from before. Perhaps I may seek clarification on that.

By contrast, the Countryside Council for Wales, which has a similar power to issue guidance in Wales under Clause 31(2), will be able to take full account of those conservation interests because it combines the wildlife functions of English Nature and the access functions of the Countryside Agency in Wales. An integrated approach will automatically be taken.

To ensure that a properly integrated approach is taken in England, the Bill should be amended to provide that guidance in England should be prepared and given jointly by the Countryside Agency and English Nature. This amendment would achieve that aim. Having heard our earlier debate, I should have thought that the Government would be pleased to accept the amendment. I beg to move.

Baroness Farrington of Ribbleton

The guidance which the Countryside Agency may issue under Clause 31 will cover directions which may be made under any part of Chapter II. The Bill provides that the relevant authority must take account of any advice given by English Nature in considering whether to make a direction under Clause 24. That is the appropriate time for English Nature to provide expert guidance on whether restrictions or closures for nature conservation purposes are needed.

However, we agree entirely that it will be desirable for the guidance, in so far as it sets out the criteria for directions to be made under Clause 24, and, indeed, generally, to take into account the views of English Nature. We expect the Countryside Agency to consult English Nature in drafting the guidance. The Secretary of State will wish to be sure, in approving the guidance under Clause 31(3)(a), that such consultation has taken place and that the draft guidance properly reflects the views of English Nature.

The noble Baroness, Lady Byford, referred to the difference with regard to Wales. The Countryside Council for Wales, in addition to its role as a countryside body, performs a similar role to that of English Nature, as the noble Baroness recognised. However, although part of the same body, the countryside and conservation aspects of CCW function separately where appropriate. We expect that, where it is given a power in parallel with the Countryside Agency, the functions will be carried out in a similar way to that of England.

I hope that the noble Baroness is reassured that the guidance issued under Clause 31 will indeed take into account the advice of English Nature. English Nature will also be able to provide advice on specific cases of directions under Clause 24. Therefore, I am sure that the noble Baroness will not feel it necessary to press her amendment.

Baroness Byford

I am grateful to the Minister for her response. I suspect that there are many who have joined in our debates this evening who have been extremely reassured by the fact that the Government regard conservation as a high priority. We all welcome and look forward to greater access being available to people. But many of us feared that the protection of our wildlife, flora and fauna might be at risk at some stages. I have been greatly encouraged by what we have heard tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Clause 32 agreed to.

Clause 33 [Agreements with respect to means of access]:

Baroness Miller of Chilthorne Domer moved Amendment No. 295: Page 20, line 28, leave out sub-paragraph (ii).

The noble Baroness said: In moving this amendment I shall speak also to Amendments Nos. 296 to 298. They are straightforward amendments which deal with means of access and the agreements made with respect to those means of access and failure to comply on the part of owners.

As regards Amendment No. 295, we believe that subsection (2)(b)(ii) should be deleted because it provides for access authorities to make payments to owners or occupiers, in consideration of the imposition of any restriction".

Unless the Minister tells me differently, I believe that that means that this is a provision for access authorities to pay owners and occupiers for not doing things.

In the past 15 years or so we had a system under which we paid owners of land not to do things, but I believe we have now moved into an era of more positive management. Ideally, the Bill would give access authorities a duty to take action to prevent important means of access being stopped up or otherwise being made unusable rather than paying an ongoing amount of owners not to restrict access.

Amendment No. 296 deals with the fact that where owners are in breach of an agreement, an access authority can give notice of only 21 days to the owner to take action. We feel that the figure of 21 days is too short; we believe that it should be extended to 40 days. Much of this Bill applies, for example, to land over 600 metres. There may be periods of 21 days when it would be difficult to carry out the work and an owner might be lucky enough to be on holiday for two weeks and so have only a week in which to comply. We feel that 40 days would be far more reasonable.

Amendment No. 297 simply introduces the idea that if the local authority undertakes the work, for which the owner would be charged because the owner had failed to comply, it is reasonable, even under those circumstances, that the local authority should show evidence of obtaining quotations for the work, which is normal practice. The work could be expensive if it concerned a bridge. It is reasonable to expect the local authority to make an effort to obtain different quotations for such work.

Amendment No. 298 introduces a reason for appeal that does not appear in the Bill. It seems reasonable that such a reason for appeal against enforcement may be that different work was proposed. The owner may have planned to provide a different means of access; for example, the access authority may believe that a simple bridge is the answer whereas the owner wishes to provide stepping stones which may take longer to install. I beg to move.

Lord Williamson of Horton

I support Amendment No. 298. We need to ensure that where there is a possibility of appeal it genuinely covers reasonable cases. Even at this time of night one can think of reasonable cases, covered by the amendment, that are not covered by the Bill as it stands. Therefore, I believe that we should make this change. I hope that the Government will accept it. I have categorised all the amendments that we have discussed tonight as good, bad and gung-ho. We have finished with the gung-ho amendments and I believe that this is a good one, so perhaps we can adopt it.

Lord McIntosh of Haringey

Chapter III allows an access authority to enter into agreements to construct a new means of access, or to maintain or impose restrictions on stopping-up or altering an existing means of access. If agreement cannot be reached it makes provision for an access authority to secure the means of access by carrying out any necessary works at its own expense. These provisions will allow access authorities to improve or to secure access to or across open country where there are insufficient facilities for walkers at present.

Clause 33(2)(b) gives the access authority specific powers to pay landowners for entering into such agreements, including agreements restricting the stopping-up or alteration of an existing means of access. A restriction may include agreeing not to stop up an opening in a wall, or agreeing not to put a lock on a gate. Amendment No. 295 would remove the power for authorities to make payments for such agreements.

In general, we would not expect access authorities to make payments of any substance to landowners in return for not doing something. That is just the sort of transaction from which we have tried to steer away in the context of Part III of the Bill. But agreements are, by their nature, voluntary, and it may be that an access authority will find it worth while to enter into such an agreement for a small consideration, which may secure a valuable means of access for long-term use and may perhaps be part of a larger agreement covering a number of different means of access, some of which are being constructed or improved. The means of access could then be shown on maps and guide books with reasonable certainty about their future security.

If a landowner were to hold out for an unreasonable payment in return for entering into such an agreement, it would be open to the access authority to do nothing. If, in the absence of an agreement, the landowner stopped up a means of access, the authority could seek: to proceed by way of notice to unblock it under Clause 35. So we do not see this provision as a licence for landowners to print money in return for not obstructing access. But it does represent flexibility for access authorities in appropriate cases to pay small sums of money in return for the long-term security of means of access and by that means avoiding the procedures in Clause 35. We therefore believe it has merit and should be retained.

Turning to Amendment No. 296, we believe that, where a landowner entered into an agreement to maintain or construct a means of access of his own volition, it is only right that there should be some mechanism to ensure that the terms of that agreement are fulfilled. Clause 34(1) therefore provides that, if the landowner fails to discharge his responsibilities under an agreement within the time specified, then the access authority may ensure that the agreement is fulfilled by carrying out the works themselves.

It is not the concept of reasonable notice that is in question, but what period should be considered as reasonable. We believe 21 days' notice is more than reasonable. We are talking about cases where a landowner has previously agreed to provide or enhance a means of access to his land—perhaps in return for some payment—and is subsequently in breach of that agreement. He would be fully aware that, in breaching the agreement, he left himself open to action by the access authority to carry out the work itself, as he would be if he had not agreed. So any notice by the authorities of their intention to carry out work would not be unexpected. In those circumstances 21 days' notice provides ample opportunity for the landowner to undertake the work himself, should he intend to do so. Should he not intend to honour the agreement, we see no reason to extend the potential period of delay by requiring the authorities to give no less than 40 days' notice. I therefore cannot support that amendment.

Amendment No. 297 aims to ensure that the provisions for recovery of costs from landowners is fair. It may wish to do that where it carries out works which a landowner has already agreed to carry out.I am pleased to see that the amendment takes account of the principles of "best value" which all local authorities must follow. However, it is not necessary to include such a provision in the Bill. The principles of "best value" apply to all access authorities and already mean that the authority must carry out appropriate procedures for letting contracts, so there is no need to duplicate that requirement in this legislation.

Finally, Amendment No. 298 provides for appeals against a notice under Clause 36(3) on the grounds that the works are not required to give reasonable access to the land or that the means of access should be installed elsewhere, or that any of the works in question have already been carried out. Where an access authority is unable to enter into an agreement to provide a means of access, it may serve notice on the landowner or the occupier of an intention to carry out works to secure such a means of access.

This amendment would enable landowners to appeal if they believed that different works should be carried out such as a different type of means of access. That might be, for example, because the access authority proposed the installation of a gate but the landowner felt that a stile or a kissing gate would be more appropriate. That would be covered by the ground in sub-paragraph (a)—that the works were not necessary to allow reasonable access. The situation which the Bill may not cover is where an access authority had, for example, proposed works to install a stile, but the landowner wanted a gate fitted instead.

We agree that there could be legitimate reasons why landowners might want to appeal against the notice on the grounds that different works are needed and that they might not be able to do them under the terms of the Bill. We are therefore happy to consider the matter further with a view to tabling an appropriate amendment at the Report stage but I am afraid that I must resist the first three amendments.

Baroness Miller of Chilthorne Domer

I thank the Minister for agreeing further to consider the final amendment in the group. I am pleased about that. However, I am disappointed that Amendment No. 295 is not acceptable because the provision is a retrograde step. I understand his reasoning as regards the other two and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 agreed to.

Clause 34 [Failure to comply with agreement]:[Amendments Nos. 296 and 297 not moved.]

Clause 34 agreed to.

Clause 35 agreed to.

Clause 36 [Appeals relating to notices]:

[Amendment No. 298 not moved.]

Clause 36 agreed to.

Clause 37 agreed to.

Clause 38 [Powers of entry for purposes of Part I]:

Lord Glentoran moved Amendment No. 299: Page 24, line 21, at end insert— ("(7A) It is the duty of the appropriate countryside body, a local highway authority, a National Park authority, and the Forestry Commission, as the case may be, to compensate any person who has sustained damage as a result of—

1. (a)the exercise of the power conferred by subsections (1) to (4) by a person authorised to do so, or
2. (b)the failure of a person on leaving land entered in the exercise of a power under subsections (1) to (4), and which is unoccupied or from which the occupier is temporarily absent at the time of entry, to leave the land as effectively secured against unauthorised entry as he found it,

except where the damage is attributable to the fault of the person who sustained it; and any dispute as to a person's entitlement to compensation under this subsection or as to its amount shall be referred to an arbitrator to be appointed, in default of agreement, by the Secretary of State.").

The noble Lord said: Clause 38 relates to compensation provisions for powers of entry under Part I to be consistent with parallel powers for SSSIs. Clause 70 of the Bill sets out powers of entry in relation to sites of special interest. These include, in subsections (6) and (7), provisions for compensation to be paid where any person has sustained damage as a result of the exercise of those powers of entry.

The amendment seeks to replicate those provisions in relation to access land. It is important to anyone who suffers loss as a result of the exercise of the powers of entry by the appropriate countryside body, a local highway authority, a national park authority and the Forestry Commission, as the case may be.

While damage is unlikely to occur, there is always the possibility that it will occur. We submit that in these cases appropriate compensation for the affected owner/occupier of land should be available. I beg to move.

Lord Whitty

I accept that there is a possibility—albeit remote because the powers are narrow in terms of Part I—that a public body might cause damage in construction, repairing a means of access or erecting a notice. Therefore we probably need the parallel amendments. I am happy to take the amendment away with a view to bringing forward our own amendment on Report. I hope that the noble Lord will accept that.

Lord Glentoran

I thank the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 agreed to.

Lord Whitty moved Amendment No. 300: After Clause 38. insert the following new clause—

cc1813-4
1. REFERENCES TO PUBLIC PLACES IN EXISTING ENACTMENTS 264 words