§ (" . The purpose of this Act is to—
- (a) create a structure for mapping countryside in preparation for open access;
- (b) make provision for public access to the countryside;
- (c) set out a mechanism for granting public access upon completion, in whole or in part, of the mapping process;
- (d) control traffic of all kinds in areas of natural beauty and on land other than roads;
- (e) strengthen the law relating to nature conservation and the protection of wildlife;
- (f) receive Government proposals for developing areas of outstanding natural beauty; and
- (g) make necessary consequential changes.").
§ The noble Baroness said: The purpose of introducing this new clause to the Bill is for clarification. At present the Bill leaves several aspects unclear. It is unclear that mapping and access are two separate issues. It is unclear that mapping will be wholly funded centrally, but that the costs provided for access will not; it is unclear that the mapping operation will start immediately and last continuously for up to eight years; it is unclear that access provisions will start two months after Royal Assent, mainly to mountain and registered common land; and it is unclear that the Secretary of State may allow access permissions to continue in fits and starts over a further two to seven years. Therefore much is unclear.
§ The appointment of wardens and the authorisation of by-laws will not begin until access permission is granted. On the day that the Bill receives Royal Assent, most of the 47 million adults in England and Wales will consider that they have the right to roam—indeed, many consider that they have that right now. They will believe they have that right wherever, whenever and however they choose. But on the day that this Bill receives Royal Assent almost all of those people will be wrong.
§ Should the Committee consider that to be an overstatement, Clause 77 spells it out. The Government cannot have fully considered its implications. On the day of enactment, prison terms for wildlife violations become enforceable. The short titles of the Highways, the Wildlife and Countryside Acts and of this Bill are recognised. The implementation timetable is enforced. Two months later comes an automatic implementation of the provisions relating to access and to excepted land, to coastal land, to mapping, to the designation of appellate powers, to the rules for increasing the protection of wildlife, but not—I emphasise "not"—the amendments to the existing law necessary to enforce them. All the rest happens when the Secretary of State says so and that will depend on the success and timetable of the mapping programme.
§ I hope that I have so far demonstrated why we on this side of the Chamber feel that the Bill as it stands is muddled. It tries to cover too many topics in one and will result in confusion for walkers, land managers, local authorities, the police and anyone else who has an interest in the countryside. Indeed, our great fear is that as it stands this Bill will destroy the very things that the Government are trying to protect.
§ We are strongly supportive of the increased wildlife protection contained in the Bill; of the attempt to end the delays in the establishment of footpaths and other rights of way and to provide reasonable public access 793 to open country. However, we feel that that will not be achieved without a balance between the various competing interests and full funding from the centre to pay for all the necessary changes.
§ English Nature, in its most recent parliamentary briefing, states that the purpose of the Bill can be achieved only with proper funding. Access needs to be managed if the very wilderness and wildlife which so many people prize so highly are not to be adversely affected. English Nature also states that the infrastructure of wardens, notices, information and incentives must be adequately provided. I know that the Minister has great respect for English Nature and its views on wildlife. If it underlines what we on these Benches are saying, I am sure that he will pay great attention.
§ The Bill must provide not only a balance and adequate funding; it must also define a clear timetable. At this moment we do not know when the mapping will commence, how it will proceed or when it will finish; nor do we know whether the Secretary of State intends to wait until the whole task is completed before he starts to implement rights of access and so forth.
§ We know that the preparations of the invitations to tender were due to be completed by the end of July. I should be grateful to the Minister for his assurance that the project is on time. The process, from the issue of the tender documents to the awards of contracts, will take roughly six months. The mapping will then take from two to seven years. Again, I should be grateful for the Minister's assurance on those points.
§ Much of our countryside is already open to access through our national parks, the National Trust and voluntary agreements, but much is closed to the public. Unless the Bill is clearly understood, and its timetable and necessary limitations accepted, those with legitimate interests in private land will find their rights violated and their privacy invaded. Government departments will also come into this category and I wonder how they will cope with the situation where the public believe that they have the right to roam, but where mapping has not been completed, wardens have not yet been appointed, and by-laws are not yet in place.
§ I fear that there may be an increase in violence. Already those who manage the land are suffering from the attentions of those who want to take what is not theirs. How much worse it will be if we allow the Bill to pass knowing that its main provisions will not come into operation for years.
§ Furthermore, and on the other hand, what about the users? They need to be secure. Walkers must be certain that they have the right information to ensure their safety. Everyone must have a clear understanding of their rights and responsibilities.
§ The Bill as it stands is a muddle. It covers too much ground and lacks the basics. Every businessman knows that for projects to be successful, they must be simple, measurable, attainable, realistic and 794 timetabled. I have grave doubts whether that is possible, which is why I have tabled this purpose clause. I beg to move.
§ 4 p.m.
I warmly support the amendment. In some ways, it is the most important amendment we have tabled. I should first confess that in the past 130 years there has been only one advisory committee to enable government, Parliament and Whitehall to get the drafting of Acts of Parliament right. It was called the Committee on Preparation of Legislation and I had the honour to be its chairman. Its most important recommendation reads:Statements of purpose … should be used when they are the most convenient method of clarifying the scope and effect of legislation … when so used, they should be contained in clauses and not in preambles".We might well have recommended that they should not be contained in the Long Title either. This is a long Bill which deals with a variety of issues. A few short phrases in the Long Title does not in law have the effect of enabling the Bill to be properly interpreted and applied.
The Bill requires much clarification and we shall deal with that during our long discussions. However, in my opinion, it is vital that there should appear at the beginning a statement of purpose of the kind proposed by my noble friend. I do not say that it is perfect or that it cannot be improved. Indeed, in one respect, which I shall mention, it should be improved later. The amendment states:The purpose of this Act is to … create a structure for mapping countryside in preparation for open access".The Bill attempts to do that but we must make it clear that that is one of its purposes. The proposed purpose clause does so. Paragraph (b)—make provision for public access to the countrysideis a broad statement but we later discover in the Bill that public access is not ubiquitous; it is limited. Perhaps paragraph (b) should make it clear that "public access" is as defined in the Bill and not just any public access. In that respect, that paragraph might on Report be amplified.
The proposal in paragraph (c), which reads,set out a mechanism for granting public access upon completion, in whole or in part, of the mapping process",is very good and would help in interpretation. Reference is also made to controlling traffic. Paragraph (e) reads:strengthen the law relating to nature conservation and the protection of wildlife".It should be made known at the start that that is one of the main purposes of the Bill.
I turn to the part of the amendment which I believe requires modification. Paragraph (f) reads:receive Government proposals for developing areas of outstanding natural beauty".I am worried about that because "development" nearly always means building of one kind or another. It may be residential, industrial, social or for other purposes, but it is not a purpose of the Bill to 795 encourage, in a broad sense, the development of areas of outstanding natural beauty. Therefore, I believe that that paragraph must be amended.
Finally, paragraph (g) states:make necessary consequential changes",which is a technical phrase.
I believe that we are indebted to my noble friend for putting forward such a clause. We do not have enough such clauses in our long and complicated Acts of Parliament and I hope that the Government will consider it sympathetically.
§ Lord Brittan of Spennithorne
I, too, warmly welcome the proposed new clause. It seeks to clarify the central purpose of the legislation which would otherwise be lacking—and to some extent succeeds. However, one aspect of the purpose of the legislation is not covered by the new clause and it is necessary that it should be before we proceed further. I refer to the fact that the legislation must maintain a fair and proper balance between the rights of walkers and the owners of property if it is not to fall foul of the European Convention on Human Rights. One of the purposes of the Bill should be to ensure that that is done.
In my speech at Second Reading I referred to serious doubts about the compatibility of the Bill as it stands with the convention. If those doubts are justified there is a fundamental flaw in the Bill. However, that flaw is capable of rectification. It is necessary to consider that matter now—not to torpedo the Bill but to get it right. As I said at Second Reading, it would be an irony if the right to roam legislation was itself one of the first pieces of new legislation to fall foul of the European Convention on Human Rights, which automatically becomes part of the law of this country next week.
There are three reasons why the legislation in its present form is probably in breach of the convention. First and most important, it provides a right of access with out compensation. I believe that that is a breach of Article I of the convention which states:Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law".It was conceded by Mr Meacher on 18th April in another place that this legislation infringed property rights. It is also right to say that property rights are not inviolable or absolute, as is reflected in the second paragraph of Article 1:The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties".In the jurisprudence of the European Court of Human Rights Article 1 has been interpreted as a requirement that in any legislation which deprives people of their property rights there should be a fair balance between the demands of the general community and the requirements of their fundamental rights. In the case of this legislation I suggest that in 796 order to determine whether there is a balance one of the most important requirements is to look at the nature of the breach of property rights that is inevitably contained within the legislation and see whether compensation is provided. It is no use saying that compensation is provided if the grant of such compensation is wholly discretionary and depends on the judgment of a public authority rather than a legal right that is enforceable in a court of law.
In the debates in another place and at Second Reading in this House ample evidence was provided of damage to property rights that would be caused by the legislation. First, anyone who is responsible will be required to provide warnings of hazards on land which has not previously been open to the public. Secondly, there is no doubt that the proper implementation of the legislation will require extra fencing, which is another cost. As the Minister admitted in this House, the extra insurance required is an undoubted further cost. There will also be greater maintenance costs incurred as a result of many more people entering land that is in private ownership than has previously been the case.
All of this can be dismissed by the other side as de minimis, but that does not cut much ice. If there is not a substantial further entry onto private land compared with what happens now on public rights of way, frankly there is no point in the legislation. The Bill is designed to ensure substantial further access. Therefore, greater maintenance costs and the other expenses to which I have referred will undoubtedly be incurred.
As has been said so often by the Government Front Bench—it has been repeated rather like a mantra—even if there is no extra legal liability, that has no relevance. It is one thing to say that the formal legal liability is not increased, but if a hugely increased number of people trample over land there can be no question about the much greater cost of complying with the legal liability which may not be formally greater. There is also the potential loss of value of land about which there has been a good deal of argument. I do not believe that anyone can responsibly dismiss that as an irrelevant fact.
We have a situation in which there is a diminution in property rights and the possibility of substantial extra costs being incurred. The question of compensation arises in determining whether the good granted to the general public by the right of access outweighs the diminution of property rights which necessarily flows from this legislation.
It was said in the recent case of Lithgow v United Kingdom:Compensation terms are material to the assessment of whether a fair balance has been struck between the various interests at stake and, notably, whether a disproportionate burden has been imposed on the person deprived of his possessions".Clearly, in looking at that balance it is highly relevant to ask whether there has been compensation. In looking at balance, it is also appropriate to consider not merely the possible grant of compensation but whether there has been an historic precedent for it in this country long before the European convention 797 gained the force of law. One had the famous statement of Lord Silkin on the passage of the 1949 Act and the Act itself which provided for compensation. It is no use saying, as Ministers have said in previous debates, that Conservative or Labour governments—it matters not which—have produced legislation that has not granted compensation. The relevance of it is that, now we have the European Convention on Human Rights, these matters must be looked at in a consistent and fair way.
If the Government are to provide an honest and fair certificate of compliance with the European convention, the question is how the balance between the deprivation of property rights and the interests of the general public is to be interpreted by the European Court of Human Rights in Strasbourg. To help us assess that question we have the precedent of the Chassagnou case. That is an ironic precedent in that hunters were allowed by statute to go onto people's land against their wishes. That was a curious piece of legislation, to say the least. It was held that, even though compensation was granted to those who might have lost property rights as a result, that was not sufficient to avoid the finding of a breach of the convention. I quote from the judgment in that case:In the present case the applicants do not wish to hunt on their land and object to the fact that others may come onto their land to hunt. However, although opposed to hunting on ethical grounds, they are obliged to tolerate the presence of armed men and gun dogs on their land every year. This restriction on the free exercise of the right of use undoubtedly constitutes an interference with the applicants' enjoyment of their rights as the owners of property. Accordingly, the second paragraph of Article I is applicable in the case".It is ironic that the particular case that I cite should be of that character, but the principle is the same. It is clear that the Court found that the granting of rights to people on other people's land amounted to a breach of the convention. It is also relevant to show that if discretionary compensation is provided that is not sufficient to provide a proper balance to the grant of the right to go on to other people's land for whatever purpose, whether it be to walk or whether it be to hunt, because later in the judgment it states:As to the assertion that it was open to the applicants to ask for their land to be included in a game reserve or nature reserve"—which is comparable to some of the provisions in the present legislation—the Court notes that neither the ACCAs, nor the Minister nor the prefect are required to grant such requests from private individuals, as shown by the refusals of the applicants' requests in the present case".From that it becomes clear that the provision of compensation on a discretionary basis is not sufficient to prevent the Act biting. I suggest that there is a powerful case that the grant of a right to roam without legal compensation would be held to be in breach of the European Convention on Human Rights which is about to become part of the law of this country.
But there is a second reason to think that that might be the case. That relates to the mapping provisions. They are of course crucial as they determine the land to which the rights apply. Maps are to be produced in 798 provisional form and landowners have a right of appeal against the designation of land as open country. But there is no requirement that there should be notification that their land is being included. There is only a general notice and people have to look at that general notice before knowing whether their land is included. I think that it is highly arguable that the absence of a notification provision is a breach of Article 6 of the convention. A right of appeal is only capable of being exercised—as the convention requires it to be permitted to be exercised—if the person knows that circumstances have arisen which affect him and might give rise to a right of appeal.
Thirdly, I believe that the Bill in its present form is in breach of the requirements of the convention that the determination of one's rights should be by an independent and impartial tribunal. Here the appeal is to the Secretary of State against a decision of a government agency. An important case has been decided on this very point since our last debate on 25th July. That is Country Properties Ltd v Scottish Ministers.
§ Lord Brittan of Spennithorne
It was decided in the Court of Session. It held that the decision of the Scottish Executive to call in a listed building application because of the concerns of their agency, Scottish Heritage, was contrary to Article 6. Whether the situation here is on all fours is not free from doubt. The question is whether the Countryside Agency would be considered in the same situation as Scottish Heritage. However, the parallel is uncomfortably close and if I were a Minister I would be extremely worried about having given that certificate of compliance with the convention after the decision of a Scottish court only a couple of months ago. That matter could be remedied if, instead of providing for an appeal to the Secretary of State, a provision was introduced providing for appeal to the Lands Tribunal. That would be a completely different matter. Therefore, I would suggest that the concerns about compliance with the European Convention on Human Rights are cumulatively considerable. They could and should be remedied by granting, first, a right to compensation; secondly, granting a right to notice if one's land is going to be affected by the mapping provisions; and, thirdly, by providing a truly independent appeal from a decision of the Countryside Agency, perhaps to the Lands Tribunal.
I have no subversive intent in raising these concerns, which sound very fundamental. This is not designed to undermine the Bill as a whole; nor does it have that effect. But I think that, in the face of the very recent decision of the Court of Session, the Government would be unwise to shelter behind whatever legal advice they have had in the past, especially in the face of a powerful judgment delivered after that advice was given. I hope therefore that one of the central purposes of the legislation to create that proper balance as 799 required by the European Convention on Human Rights can be achieved in our subsequent debates as it has not been achieved as yet.
§ Lord Williamson of Horton
Although I have not long been a Member of your Lordships' House, I know that Governments are not very fond of purpose clauses and are inclined to say that the purpose of all the legislation they present is self-evident and that issues are already fully covered in the Long Title, to which reference has already been made. I fear that Long Titles are rather like the old definition of notes in the field of diplomacy; that is to say, they are absolutely correct but not very useful.
Within the proposed purpose clause which has been put forward as Amendment No. 1 there are some specific elements which I hope we can get right in the Bill. I am glad that the noble Baroness, Lady Byford, raised them before we reach Clause 1. I think it is important that we deal with these points now. I make this point because I am broadly in support of the Bill and I do not think that it needs 567 amendments as currently proposed. But I believe that it is in everyone's interests that the introduction of the right to roam and the changes in relation to public rights of way and road traffic should be brought into effect with the minimum of contention and disagreement.
That is why I am glad to see that in the proposed Amendment No. 1 we are plunging straight into the question of the availability of maps, to which the noble Baroness, Lady Byford, made specific reference. Under Clause 4 it will be the duty of the Countryside Agency in England and the Countryside Council for Wales to prepare maps which show all registered common land and all open country and, after publication and possible appeals, to publish them under Clause 9 in conclusive form or in certain circumstances in provisional form. But what about the timing? That is the vital question if the Bill is to come into law and to work. It is important because walkers, landowners and occupiers all agree that they need to know accurately which land is open for access. That is an essential underlying point for the whole Bill. We do not want disputes on the ground about the implementation of this major and generally positive development for which the Bill makes provision.
There are two ways to deal with the question. One method is that proposed in Amendment No. 1, which we are now discussing, and again in Amendment No. 84, which we shall come to shortly; that is to say, to make an explicit link between granting public access and the completion, in whole or in part, of the mapping process. That is the first point. Are we going to do that and stick with that?
The second point is that the Government must give firm commitments on the timing of the completion of the mapping process because of the risks that many of us see in the period between the enactment of the legislation and the completion of the maps. This demand for a timetable is exactly in line with the views of a number of associations who have written to us. There are plenty of them, I may say. But on this point the Ramblers' Association quite explicitly asked for a 800 timetable for the mapping process. I do not believe that that process is impossible. If we build that into the purpose clause as currently proposed, that element will need to be clarified.
I very much hope that the noble Lord, Lord Whitty, will tell us the view of the Government on the substantive question of the explicit link between access and the completion of the mapping process and on a possible timetable for that process.
§ 4.30 p.m.
§ Baroness Carnegy of Lour
I wish to Follow the noble Lord's speech with an additional point on the same lines which he from the Cross Benches and from his background in the Civil Service perhaps would not want to make.
I must declare an interest. For 32 years I was an owner-occupier of a sizeable farm. I have not been involved in that for more than 10 years so it is a past interest, but I still live in the same place in the countryside, among the people who live and work there. I did not speak at Second Reading because many other speakers in the debate knew all about how the countryside works and because I live in Scotland and Part I of the Bill is about England. At the end of July I was not sure whether I thought that my noble friend's amendment was a good idea. But a great deal has happened across the United Kingdom over the Recess and that has made me change my mind. The amendment is important for clarity. The Government should heed that point.
The feeling of resentment among country people has grown enormously since the end of July. They feel that the Government are legislating in a way which disregards and damages their interests and that the Government simply do not understand country living. They feel that the Government do not understand that the use of a car is unavoidable in the countryside and that the price of fuel is crucial to farming. They feel that the Government do not understand that the whole basis of the culture of many country people is horses and that everything that happens in parts of the countryside is affected by hunting. People are feeling greatly alienated.
The issue of access is potentially another damaging element of the feeling between country people and town people. Country people want more access to the countryside just as much as town people want it. I am not referring to the important points; made by my noble friend Lord Brittan, which I thought were very interesting. I should think that the Government are shivering in their shoes, having listened to that speech. I am talking about how country people and town people feel. They are interested in access. They want it to work. However, as the noble Lord, Lord Williamson, said, a great deal of confusion will be created by people thinking that they will have access as soon as the Bill becomes law and then finding that they do not have it until there is a map. The long pause between the time of understanding that access is possible and the creation of the map will cause a good deal of trouble. People will confront one another. 801 There will be dogs about where country people feel that dogs should not be about. There will be people spooking about in the dark when country people do not want them spooking about. Country people themselves will not be sure whether they can roam on the local gallops. The whole thing is a terrible muddle.
Clarity is needed at the beginning of the Bill. A clause which can be quoted in government leaflets sent to every household and in posters put up in the countryside would be very helpful. My noble friend Lady Byford has done a useful service in tabling the amendment. I do not know whether the Government will accept it. I notice that the Minister is looking rather amused by what I am saying. Perhaps he is right, but I hope that he is not amused by the prospect of what may happen if such clarity is not in the Bill. There will be a good deal of trouble in the countryside and in the towns, which depend on the countryside for the health of their economies, if there is not such clarity in the Bill. It is a genuine point. I support the amendment.
§ Lord Bridges
I listened with great interest to the remarks of the noble Lord, Lord Renton, on purpose clauses. This is not the first time the noble Lord has spoken to us on that subject and he is indeed very convincing. I should like to support the reservations he expressed about paragraph (f) of the clause, which refers to,Government proposals for developing areas of outstanding natural beauty".I do so, first, because that is not what the Bill actually does and, secondly, because that is not what it should be doing. It should be providing greater protection to the areas of outstanding natural beauty. I spoke to that effect at Second Reading. I shall not therefore be able to support the amendment unless the noble Baroness is able to give us some assurance that should her amendment be carried she will be willing to see it further amended to ensure that we are talking about the protection of areas of outstanding natural beauty and not their development. The present system is defective in this area. We have an opportunity to put it right. A purpose clause would be misleading if it gave the impression that it does at the moment.
§ Lord Roberts of Conwy
Like my noble friend Lady Carnegy of Lour, I find myself in sympathy with much of what was said by the noble Lord, Lord Williamson. In particular, I find myself in sympathy with the approach of the new clause to the whole business of mapping. Subsections (1)(a) and (b) of Clause 1 refer to the need for proper mapping before public access is granted. They contrast with the loose provisions for mapping in the rest of Clause 1. I am particularly concerned with the immediate access provided to all land more than 600 metres above sea level—that is, land above 1,968 feet—whether mapped or not. That will lead to all kinds of difficulties and confusion. The public will naturally think that they have a right to roam such land at will, whether or not there is a right of way to it from the foothills. When they get there, 802 how are they to know without some mapping guidance that they are safely within such access land and not wandering outside it and possibly trespassing on other people's property?
The NFU made the point clearly to me in a letter of 22nd June. It pointed out that land over 600 metres and indeed common land,does not exist in isolation and access to it may or may not be across open country. Hence there is a need for the mapping programme to be completed before the new right comes into force, as otherwise confusion will reign which would not be in the interests of either walkers or owners and occupiers of land".The NFU went on to say:There is a serious risk of an assumption in the public's mind (which some may encourage) that the passing of the Bill will confer an immediate right for walkers to go almost anywhere they want, well before mapping has been completed, the Schedule 2 restrictions have been brought into force, and wardens appointed to resolve difficulties for visitors and occupiers alike".That is absolutely right. We should be foolish to ignore such warnings. It is clear that the proper approach should be that all the access land is mapped before access is granted.
I happen to know that the Countryside Council for Wales, which will be responsible for mapping in the Principality, is concerned to ensure that access land is properly mapped before access becomes available. I am sure that that is the right line to follow if we are to avoid a chaotic situation. I do not think that we are requiring too much in asking that the Government respect the purpose clause advanced by my noble friend. A great deal of basic work has already been done. Ordnance Survey has recently completed highly detailed Explorer maps of Wales which track registered footpaths, bridleways, field walls and fences. However, I suspect that those maps will require adaptation to meet the terms of the Bill, as well as distribution to interested parties and so forth.
It seems to me that the key point that the Government need to address here is whether it would not be better to complete the work before the Bill becomes law, rather than make sweeping declarations as regards unmapped access land, as has been done in Clause 1. It is clear that the Government are aware of the issue and, as regards open country and registered common land, have provided for mapping in subsections (1)(a) and (b) of Clause 1, but for some peculiar reason they have left out of the mapping requirement other kinds of land. Why on earth are we to have such disparate treatment of different kinds of land? I argue that there should be consistency in the Government's approach and consistency within Clause 1, such as that which has been proposed in my noble friend's new clause.
§ 4.45 p.m.
§ Earl Peel
I, too, thank my noble friend for moving this amendment. It gives us an opportunity to discuss in more detail some of the fundamental issues that were not dealt with at Second Reading.
Perhaps I may begin by declaring an interest as an owner of land, the majority of which will be affected by the provisions in the Bill. Having got that out of the 803 way, perhaps I may now concentrate my comments in support of this amendment on what I regard as the potential conflict between Parts I and III of the Bill, which both relate directly to subsections (b) and (e) of my noble friend's amendment.
There can be no doubt about the deep concern felt by many—conservationists and land managers alike—that the Government are pressing ahead with the new access proposals without having seriously considered the management implications for wildlife. Unless these are dealt with and thought through with extreme care, I believe that the proposals could undermine Part III of the Bill.
I need hardly remind the Government of their obligations as regards the environment via the Biodiversity Action Plan and European habitat and birds directives, as well as taking into account the next inundation of a raft of SPAs, SACs and goodness knows what else. However, in the past, whenever doubts arose about the impact of any activity on the environment—not only that of access—the "precautionary principle" would apply. I do not know what has happened to that principle, but nowadays—if I may put it like this—there appears to be an almost sinister disregard for it, perhaps at the expense of political expediency. I do not know whether that is the case, but that is my feeling and I know of others who have expressed the same view.
As I mentioned at Second Reading, the EU has produced a lengthy tome on the whole question of the precautionary principle. I understand that it is now enshrined in European environmental law and therefore we must adhere to it. The document makes an important point by setting out the need to ensure that, when there is a void in our knowledge, appropriate research is carried out. I would suggest to the Minister that the level of research required to ensure that the likely impact on wildlife and wildlife management as a result of increased access is not excessive has not been completed to anything like a satisfactory level.
To the best of my knowledge, four separate pieces of research have been undertaken specifically to look into this question; namely, the impact of access on ground-nesting birds—which is the nub of what we are discussing here. The research which perhaps has been quoted most often is that carried out some time ago by Derek Yaldon in the Peak District National Park. It showed a clear correlation between the inability of golden plover to establish territories and human disturbance. That was, I believe, the most comprehensive piece of work to have been undertaken so far.
Other research includes that conducted by Dr David Hill et al which states:Evidence suggests that levels of disturbance could be considerable, with significant implications for bird conservation".Another report was produced by Penny Anderson Consultants. It concluded with a statement to the effect that:There is a demonstrable effect of recreational disturbance on the more sensitive birds".804 Finally, in his report published on behalf of the Ramblers' Association, Roger Sidaway states that:On present evidence it appears that four upland waders, curlew, golden plover, redshank and common sandpiper, are probably the species most susceptible to disturbance".I fully acknowledge that these reports are generally thought to be inconclusive, but they appear to contain two common strands: first, that disturbance could very well be a problem; and, secondly, that comprehensive research is necessary before informed decision making can take place. I would suggest that that is essential if the access provisions contained in the Bill are to be introduced in a way that will not compromise nature conservation and management and thus undermine the provisions set out in Part III.
I was also interested to note that the Royal Society for the Protection of Birds, in its recently distributed brief on the Bill, stated that:Disturbance is widely perceived as having a significant impact on wildlife, especially ground nesting birds. However, few research studies have been carried out to test this hypothesis in any habitats, let alone in open country".The other day I spoke to Dr David Baines, the head of the upland unit of the Game Conservancy Trust, of which I have the honour to be president. He agreed that the lack of evidence was of real concern. He went on to mention another dimension of the p roblern, which I think is also important; namely, the strong possibility of an interaction between disturbance and predation on ground-nesting birds. That could have significant repercussions. We already know, as a result of a recent survey conducted jointly by the RSPB and the GCT, that on managed grousernoors where predator control is an essential part of that management, ground-nesting birds fare infinitely better than those on non-managed heather moors. I suggest that that point should never be forgotten.
We also need to consider the sad situation that is now to be found on Dartmoor, where open access has been in place for some time. There is no shadow of a doubt as regards the plight of some ground-nesting birds. Their position is indeed dire. Many are now on the verge of extinction. Perhaps I may offer noble Lords some figures: the number of lapwings has fallen from 54 pairs in 1979 to between 16 and 19 pairs today; the number of curlews has fallen from 23 pairs to between three and four; and golden plover have virtually disappeared.
Those figures are extremely worrying. I remain deeply concerned, not only about the possible implications of access to these birds but about the total lack of action that appears to be happening on Dartmoor to see how these problems can be addressed.
I raise these points not to be difficult or obstructive but because I believe that it is essential that we get clear commitments from the Minister that the access provisions in the Bill will not be allowed to compromise wildlife and its management.
Of course I appreciate that there are provisions in the Bill to allow for closure orders, by-laws and the rest, but how on earth can sensible, worthwhile decisions be made if the proper research has not been 805 undertaken to give people the information they require to make these decisions? I am sure that during the course of the Bill the Committee will come back to what the Minister, Mr Meacher, has said on a number of occasions: that nothing in the Bill must compromise the well-being of the economy of local communities, management and wildlife. Those words may end up being rather hollow unless we can conduct ourselves in such a way as to be absolutely sure that the effects of the Bill will not undermine those issues.
I ask the Minister to give two commitments. First, will he ensure that such research will be conducted before the access provisions in the Bill are implemented? I suspect that the mapping process will take some time and that he will have several years in which to get this research started? Secondly, will he ensure that the precautionary principle prevails until such time as research has been carried out and we can proceed forward confidently with the combination of access and wildlife management?
§ Lord Hardy of Wath
I had not intended to speak on this amendment but as noble Lords are touching upon matters almost in a Second Reading way, I thought I should say a few words in regard to the effects of irresponsible access.
The vast majority of people who want to enjoy the British countryside will cause no problem. However, we have to recognise that there are those who, through ignorance or sheer ill-will, inflict a great deal of damage. From my own observations during the past two or three years, I can think of half a dozen skylark nests which have been destroyed; I saw a four-wheel drive vehicle wipe out the nest of a little ringed plover; I can point to two sites within a reasonable distance of my home where lapwings were driven off. All three species need our care and attention.
I hope that during the passage of the Bill we shall see the Government avoid the accusation of attempting to square the circle of, on the one hand, providing for massive rights of access and, on the other, giving a full commitment to the survival of wildlife.
I recall saying to Mr Meacher some months ago that I should like an answer to what I described to him as the "lady's slipper orchid" question. In 1975 I took the Conservation of Wild Creatures and Wild Plants Act through the Commons. English Nature—the Nature Conservancy Council in those days—provided a list of species of flora and fauna which were endangered. One of them was the lady's slipper orchid, to which I have referred in previous debates but the point needs making again. In 1976 there was one lady's slipper orchid left in the United Kingdom. I believe that it is hanging on. Its location is a secret which has been thoroughly kept. I asked Mr Meacher what steps would be taken to ensure that a responsible rambler does not put his size 10 boot on the lady's slipper orchid; or, if the site is known in an attempt to secure protection, that some thief will not come along to take it. It would be a very attractive item for a thief to take.
806 The nature conservancy bodies at national level may be less anxious about the Bill than some of the organisations which flourish at local level. If a local naturalist trust or some other similar body has responsibility for a site where such a rare species exists, how can it be sure that it can protect that species by giving ecology a greater priority than access? I hope that the question will be answered in the debates as the Bill proceeds through the House. If it is not answered, the Government will not gain all the credit they deserve in so many ways in this field.
§ Baroness Carnegy of Lour
The noble Lord made a very interesting speech—I agree with him—but does it lead him to the conclusion that my noble friend's amendment which clarifies the purposes of the Bill, should be supported or not?
§ Baroness Masham of Ilton
The public roam all over the place at the moment. I should like to give the Committee an example. Only last Friday, a gate was left open and about 100 of my sheep roamed onto a golf course. No one was very pleased about that situation. Will the Government give guidelines to the public that they must respect stock in fields? Control of the public is not easy. We who farm need help in dealing with the public, who can become very aggressive.
§ Baroness Miller of Chilthorne Domer
A purpose clause debate on the Bill would have been useful if it had helped to draw together the strands we heard about at Second Reading; it would have been useful if it had painted more of the vision of where we are trying to get to with the Bill, which we support in general. The purpose clause should have mentioned the management of the natural resources of the countryside and the paths network to the benefit of the people and wildlife; it should have looked at regenerating rural communities through the wider use of the countryside. It reaches out towards doing some of that but it still has a long way to go.
It is very silent on resourcing, a matter which comes up time again as a major issue for user groups, land owners and access authorities. It is silent, too, on the issue of educating people. During the summer I talked to all manner of people about the Bill and found that they had a lack of education and knowledge of how to use the countryside. Far more guidance should be given in the Bill about access and closures.
The Bill is silent on giving local people—whether users, landowners or access authorities—a real, true say in the actions that the Countryside Agency will take as a result of this legislation. There should be far more of a link between people wanting to resource the countryside and farmers being seen as countryside stewards, and happily paying for that. For instance, there has been a missed opportunity with the reform of the hill farmers allowance. There are a number of criteria for enhancing that allowance but, even knowing that the legislation was coming, that has not been mentioned as a possible criteria. Indeed, if one has a land holding of more than 700 hectares, one will 807 not get any enhancement—but one might be the landowner who will be under the greatest pressure regarding access.
Drawing together those kinds of strands will be very useful. Our amendments aim to do that, but I do not believe that this purpose clause does so. A purpose clause should mention something about bringing together people who could do a lot for the countryside. I must declare an interest as the vice-president of the British Trust of Conservation Volunteers, an organisation which is dedicated to enhancing the future of the countryside. It works with people on the New Deal, with people who at the moment have no future, to harness their energies and enthusiasm to produce a different picture in terms of path erosion and to provide other great benefits which they can bring through their schemes. At present, too many of the Conservative amendments tend to divide users and owners and set them at loggerheads. The theme of our amendments will be local cohesion and agreement.
The purpose clause relating to the rights of way network presents difficulty. For these Benches, the rights of way network referred to in Part II represents a missed opportunity. The purpose should be to enable the network to be maintained and enhanced for the benefit of all users; to promote linkages of the fragmented parts of the network; and to enable simple mechanisms for diversions and changes which benefit landowners and users alike, and which do not harm the network. Part II does not even approach that vision at this stage.
The reference to "developing" AONBs was probably a misuse of language. I am sure that that was not intended in the spirit of the new clause. Surely its intention is to protect them.
There is presently a large hole in the Bill. I should have liked to see the inclusion of commons and village greens, which the Bill does little to protect. They are an essential part of access although they are often only pockets of land. In examining the question of open access, we should protect the small as well as the large.
Finally, wildlife protection is a cosy, "huggy" area, so there is wide consensus. I agree with the noble Lord, Lord Hardy of Wath, in his comment on species protection. It is a matter that we shall examine—if we ever get to Part III, as we all very much hope. The message through the summer—from people dedicated to wildlife and from those with merely a passing interest, but who are horrified at its decline—has been one of nervousness about the Bill. They do not want to see the Bill disappear—if only because they are keen on greater wildlife protection. We have a vision of how the Bill can be improved and we mean to help the Government to achieve that vision in the coming days.
§ 5 p.m.
§ Lord Mancroft
How do the noble Baroness and her party regard the precautionary principle and the research referred to by my noble friend Lord Peel?
§ Baroness Miller of Chilthorne Domer
Briefly—I do not want to take up the time of the Committee—we have tabled an amendment with regard to the precautionary principle and wildlife. We shall explore issues relating to nuisance and aggravation through our amendment extending the exclusion period to 27 days instead of one day. It is an area that we are interested to explore.
§ Lord Marlesford
I declare an interest: as president of the Suffolk Preservation Society and as a farmer in Suffolk. I believe that some of my land will be affected by the Bill.
We owe a debt of gratitude to my noble friend for introducing the amendment for two reasons. The first relates to the merit that purpose clauses have. It was well spelt out by my noble friend Lord Renton. So far as I am aware, purpose clauses as a principle of good legislative practice have never been challenged. The principle may not have been used as often as it should have been. This Bill presents a good opportunity.
Secondly, I should like to applaud and say how enlightened I was by the masterful and authoritative speech of my noble friend Lord Brittan. I ask the Minister whether, when he gaily signed the statement on the European Convention on Human Rights, he had received anything like the quality of advice that my noble friend has just given. It is all too easy for Ministers just to sign bits of paper placed in front of them by civil servants. This is a serious aspect of the Bill.
As I drove to the House today I was able to listen to a fascinating radio programme in which the noble and learned Lord, Lord Woolf, was interviewed about the effect of the new Act and the European convention. I suggest that unless the Government have very good evidence to refute the contentions of my noble friend Lord Brittan, they should assure us that they will reexamine this important point.
I hope that the Bill eventually becomes law. It contains much that is good. But we simply cannot allow legislation to slip through if it is not properly drafted and will not work. That would bring no credit on Parliament or the Government. Most of all, it would not help the relationship between those who live and work in the countryside and those who visit it—a relationship which it should be the object of any government to improve.
§ Lord Mancroft
I begin by declaring an interest. I regret to inform Members of the Committee that mine is among the "contorted faces" so disliked by the Deputy Prime Minister in Brighton. I am sorry about that; however, I am a board member of the Countryside Alliance, whose members naturally have a considerable interest in the Bill.
Unlike my noble friend Lord Renton, I am not a huge fan of purpose clauses, but there is no doubt that they are immensely useful in a big Bill which is not entirely clear. I use the phrase carefully. There is no doubt that the Bill as it stands is a muddle. It is a major piece of government legislation. It is referred to as a 809 "flagship" Bill—with 78 clauses, 11 schedules and 114 pages. I regret to say that as we start the spill-over period—the earliest in this House that I can remember—we are embarking on only the first day of debate in the Committee stage of a huge piece of legislation. We must examine 567 amendments, because, for a variety of reasons, the other place was incapable of looking the Bill in detail. The Bill has not been examined. Whether or we approve of it in principle or approve of different parts of it, it is a government manifesto flagship Bill and will probably end up on the statute book. I say "probably" because it is incredibly late to he examining such a huge Bill. We are already running out of time. The Government will need to do a great deal of hard work if they want the Bill to reach the statute book. I, for one, should like that to happen. The fact that a purpose clause is necessary at this comparatively late stage in order to clarify the Bill's aims is a reflection of the state in which the Bill reached this House.
My noble friend's amendment will achieve one or two important things. It will, for instance, ensure that an appropriate procedure is in place introducing the access provisions. That must be right. It will clarify the process for those wishing to exercise the new right of access and prevent it being abused prior to the completion of the mapping process. Other Members of the Committee touched on that important point. Already, over the course of the summer, we have heard instances of people thinking that the legislation is already in place and going on to private land in the belief that they already have the right to roam, and not understanding how the Bill is meant to work. If that is already happening, we can imagine what will happen in the future.
In order to guarantee user confidence in the right of access, it is important that completed maps of access should be freely available—obviously, that cannot happen if they have not been drawn. That would give walkers—and indeed landowners—the assurance that they are not trespassing and that they are not even liable to put safety at risk or inadvertently damage an SSSI, which no one who has spoken in this debate wants to happen.
The amendment will also enhance the confidence of landowners and managers. That is very important. The point was made by my noble friends Lord Marlesford and Lady Carnegy. The issue of access has much to do with the confidence of landowners and managers. At present, the Government do not have that confidence; they need to work harder to achieve it. I hope that the amendment will go some way to help in that process.
Therefore, for all those reasons, even though, as I said, I am not in favour of such amendments on the whole, I believe that this would be useful; indeed, it would be a useful way of starting what I suspect will be some very long days during which we shall look through the details of the Bill.
§ 5.15 p.m.
§ Lord Whitty
I was most grateful to the noble Baroness for moving this amendment. She concentrated a good deal on the need for a purpose clause as such rather than widening the debate. By and large, those noble Lords who followed her did likewise. A number of other areas were also mentioned which may perhaps pre-empt later debate but upon which I shall not comment in detail. I shall focus, as far as I can, on the need for a purpose clause, or otherwise, and on the nature of the purpose clause. In so doing, I shall address some of the issues raised by the noble Baroness and echoed in subsequent speeches.
I completely understand the argument of the noble Lord, Lord Renton, that basically virtually all legislation should have a purpose clause so as to allow for greater clarity. Indeed, there is much to be said for that argument. However, despite the noble Lord's advocacy over the years for such a procedure, that is not the way that this Chamber has normally operated; nor is it the way the Parliament has operated. The question therefore arises: why should we have a purpose clause in this specific Bill as compared to other pieces of legislation? Why, for example, should the noble Lord, Lord Mancroft, be convinced that we need one in this case and not in other such cases?
The main argument put forward is that this is a very complex Bill. I have to point out that this is not a complex Bill; it is a pretty straightforward piece of legislation. As the Committee will know, both I and my colleagues have been responsible for bringing various pieces of legislation before this place; for example, several local government Bills, education Bills, a Treaty of Amsterdam Bill and the GLA Bill. Much comment has been made in this House on those Bills, sometimes disparagingly. They are extremely complex Bills, but this is not. Similarly, it is not an over-long Bill. It deals with three issues upon which I believe there is a degree of consensus within the Chamber, at least in principle.
The Bill deals with the question of extending access to open countryside, subject to sensible restrictions. Indeed, the argument is about the restrictions and not about the principles. It represents a long overdue rationalisation of the rights of way provisions and deals with the protection of wildlife, including wildlife that might be threatened by some of the Bill's other provisions, as suggested by the noble Earl, Lord Peel. There are three straightforward principles involved. It is a pretty straightforward Bill, with a limited number of clauses on each of those three parts and schedules—
I hope that the noble Lord will allow me to intervene. I am most grateful to him and have been following what he has said with great interest. In effect, he said that this is a fairly straightforward and simple Bill. However, is not the difficulty here—it is unavoidable, and I do not blame the Government for it—the fact that there are a number of conflicts of interest that arise within the Bill; for example, the desire of many people to roam the countryside at will, as well as the desire, and the need, for the protection of wildlife and of the environment? Such conflicts make 811 the Bill difficult. We must do all that we can to get Parliament's intention right. A purpose clause would help us in that aim.
§ Lord Whitty
I am not saying that no difficulties or conflicts arise as a result of the Bill, as is the case with other pieces of legislation. It is the job of this Chamber to consider such matters in some detail. However, I am saying that it is not such an extraordinarily complex piece of proposed legislation as to require a different approach from other pieces of legislation. Many issues will be raised in the 567 amendments that have been tabled. I do not believe that the Bill is so complex as some of those amendments and the arguments behind them would suggest. Nevertheless, there are detailed areas, including issues of quite substantial conflict of interest, that will need to be addressed. I do not believe that there is a special reason for us to have a purpose clause in this Bill when such a clause is not present in most of our legislation.
The three main purposes of the Bill are reflected in the Long Title. Some considerable explanation of its effects when it reaches the statute book and the various parts of the Bill come into operation will be required and will be discussed later in the proceedings.
The point that I should like to address most strongly in relation to what the noble Baroness said is the concern felt in some quarters that immediately the Bill receives Royal Assent all its provisions will come into effect. Indeed, the noble Baroness stressed that that is already the case. If that is so, the matter clearly needs to be addressed. Much of the Bill will not be instantaneous. I imagine that we shall be discussing such issues at length when we discuss Clause 77, which deals with the commencement proceedings. Noble Lords will be able to address such issues at that time, but I should like to make a few comments at this stage.
The right of access to the countryside is dependent on the mechanism set out in the Bill both for bringing forward the right in the first place and for managing it once it is in force. I should like to make it clear from these Benches that the rights of access do not come into immediate effect; they are not there already. The Government and the other organisations involved in the process—local government, landowners and the countryside agencies—will need to make it clear to the general public that these provisions can come into effect only once the preparatory work has been completed. A very substantial part of that preparatory work regarding Part I of the Bill relates to the mapping process to which the noble Baroness, the noble Lord, Lord Williamson, and the noble Lords, Lord Brittan and Mancroft, referred.
We expect that the overall process—that is to say, the totality of the mapping process—to provide for the implementation of right may take up to five years. That will allow for a full process of detailed mapping, for consultation and for appeals on those maps. It will also allow for owners and others with interests in land to seek directions to allow closures and restrictions to be in place before the right comes into effect. As noble Lords have said, there is a provision as regards the fast track that we will be debating when we reach the next 812 group of clauses. If it is adopted, that would allow for earlier access but only to registered common land and to mountain land. Such a process would take a minimum of 18 months to two years to complete. Nevertheless, it would still ensure that closures and restrictions were in place after being subject to such consultation but before the implementation of the fast track. I understand the anxieties of the noble Baroness about commencement. I hope that I have clarified the position and that it will be further clarified especially in relation to Clause 77.
Like the noble Baroness, Lady Miller of Chilthorne Domer, the noble Baroness, Lady Byford, also referred to the financial side of the Bill. It may be convenient for me to say something now about the funding because I imagine that the issue will arise later in the proceedings. Members of the Committee may have noticed that the DETR has a public service agreement target of opening all of this land by the year 2005. During the current spending review—that is, the next three years—our intention is to provide sufficient funds to enable the mapping and the preparations to go ahead so that all categories of access land can be opened by that target date. It is to be hoped that some land will be opened before that time, but that date is the target for the totality of the land. Therefore, the provisions for the current spending period relate to the preparatory work rather than the administration of the system once in force. It is more difficult for me to give specific figures on the funding that will be required once access is opened because that is beyond the current spending review period and depends on the detailed decisions taken during that mapping process.
According to the regulatory impact assessment, the amount considered necessary to implement the statutory obligations of the Bill was identified as a cost to the public sector of up to £2.3 million. However, to ensure the successful implementation of the new rights when they come into effect after the period of the current review, we are thinking in terms of a figure four or five times that amount. I hope that that assures noble Lords that there will be adequate funding for the Countryside Agency, the access authorities, landlords and others to improve the management of access on their land once such rights come into effect. I hope that goes some way to answer some of the funding points.
A number of issues were raised in the debate. The noble Lord, Lord Brittan, mentioned the important issue of human rights. I do not want to respond to that matter now because when we discuss the clauses which concern liability and compensation I am sure that it will be debated at length. However, I accept the central point that it is important for the Government to assure the Committee—and for the Committee to feel assured—that the provisions of the Bill do not conflict with the provisions of the Human Rights Act. I therefore accept the challenge that we should debate those important points in the course of these proceedings.
§ Lord Brittan of Spennithorne
Does the noble Lord agree that since the statement of conformity was made on the face of the Bill there have been important 813 developments, including the decision of the Court of Session? Will he give serious consideration to whether the statement that has been made can stand in the face of both that judgment and some of the fresh arguments that have been put forward on this issue?
§ Lord Whitty
I am confident that the legal advice that we were given when the declarations were made will stand. Nevertheless, I take the noble Lord's point. I shall ensure that by the time we reach the relevant stages of the Bill we shall have assessed whether we need to take a different view in any respect in the light of those legal developments. At this stage I shall not discuss that matter further. I recognise the importance of the issue that the noble Lord has raised and the way in which it is viewed by the landowning community. More generally, we need to be able to assure the Chamber—on this legislation as with other pieces of legislation—that such declarations are valid.
§ Viscount Bledisloe
If the noble Lord does not accept the points made by the noble Lord, Lord Brittan, will he ensure that we do not merely receive a reiteration of the one-line sentence that the Government consider that the Bill complies with the relevant rights, but that we are given a reasoned argument or opinion dealing with the specific points made by the noble Lord, Lord Brittan, rather than a mere bland assurance that everything is all right?
§ Lord Whitty
I think that the noble Viscount is familiar with the convention that we do not disclose legal opinion given to Ministers. Nevertheless, I can assure him that he will receive a reasoned reply to such points which will reflect the legal advice received.
The noble Lord, Lord Roberts, referred to land over 600 metres high. I believe that we shall debate that matter almost immediately. Therefore, I hope that the noble Lord will not mind if I do not speak in detail on that now.
The noble Earl, Lord Peel, referred to the general issue of the precautionary principle. We shall no doubt address that matter in great detail when we reach Part HI. I accept that there is some "cross over" with some parts of Part I in that regard, but I shall not respond directly to that point now as we are discussing a purpose clause. The general matters of information and education which the noble Baroness, Lady Miller of Chilthorne Domer, mentioned arise in a later amendment which she has tabled. I hope that we can discuss that matter when we reach that amendment and at other points during the course of the Bill.
§ Earl Peel
I raised another issue which I believe to be fundamental; namely, the question of research into the impacts of access on ground-nesting birds. Can the Minister give us an assurance now that before the access provisions of the Bill are implemented, proper research will be carried out to ensure that those who make the decisions will have the necessary information made available to them to take those important decisions?
§ Lord Whitty
I reiterate that that is not germane to discussion of the proposed purpose clause. The precautionary principle (in so far as it applies to the wildlife provisions) will be discussed. In so far as that research affects the implementation of other aspects of the Bill—in particular, Part I—the timetable that I have outlined allows us to take into account any significant new information arising from such research. However, I believe that the provisions stand up to the research that has so far been received.
I hope that I have given the noble Baroness a general indication of why I do not think that it is necessary for us to adopt a purpose clause. However, were the Committee to feel differently, I should point out that the proposed purpose clause contains drafting deficiencies. For example, there is no reference to the rights of way provisions which make up a substantial part of the Bill. As drafted, the reference in paragraph (c) of the proposed new clause would conflict with the provisions of Clause 1 of the Bill which provides for the fast track which we are about to debate. As drafted, paragraph (d) suggests the control of traffic in AONBs. However, that is not the point of the reference to traffic which relates to the rights of way provisions. As others have said, the reference to development in AONBs could be considered ambiguous. Therefore, even if the Committee were to be convinced of the principle mentioned by the noble Lord, Lord Renton, the proposed new clause would not meet that intention.
It may be helpful to the conduct of the rest of today's business if I indicate broadly the areas where the Government have concluded, in considering the amendments that have been tabled and other representations that have been made, that we are prepared to make some move at some later stage, although not necessarily in the form of the amendments that are before the Committee. I shall indicate those areas to give greater guidance to the Committee as to the conduct of the business. We intend to move further on Report on some issues and to give serious consideration to others. The areas where we intend to move further on Report include local access forums, which are addressed in the group of amendments which commences with Amendment No. 18; the provision of information on access, which is addressed in Amendment No. 103; training gallops, which are mentioned in Amendment No. 34; dogs, which are mentioned in Amendment No. 108; and occupiers' liability, although I do not think that we shall reach that tonight. Other such issues will arise later in the Bill, but the issues I have mentioned are covered early in Part I. I hope that that procedure is helpful. I shall repeat it at the commencement of subsequent Committee days.
Given what I said earlier, I hope that the noble Baroness will not pursue the proposed purpose clause at this stage and will be content to withdraw the amendment.
§ Lord Hylton
Before the noble Lord sits down and before the noble Baroness replies, I notice that the point he made about rights of way is already fully 815 covered in the Long Title of the Bill. Therefore, I think that it would probably be redundant to repeat it in the amendment.
§ Baroness Byford
I am most grateful to the Minister for his full response to my proposed purpose clause. I am particularly grateful to all those who have spoken from all sides of the Chamber. First, I thank the Minister for indicating that the Government have already seen areas where they may propose their own suggestions or meet other amendments part way, as it were. I am grateful to the Minister for that indication. I also thank the Minister and his team who have met our Front Bench team and, I suspect, many others around the Chamber, on several occasions since the Bill first came into being.
The Minister made several points I wish to address. He said clearly that the Bill addresses three matters. However, the Bill addresses four matters. The Minister mentioned access, rights of way and the protection of wildlife. However, the Bill also addresses areas of outstanding natural beauty. We received the provisions on AONBs rather late, as the Minister will acknowledge. As we had not received that section of the Bill, the two Committee days were withdrawn at the last minute. That comment is mischievous but true.
With regard to instant access to land, I live in the country and people are saying, "We can walk over the land. We have instant access". The Government have taken on board the issue. I have sought to make it clear that we do not wish to deter them from putting forward for consideration matters which will be implemented. But there is a difference between the Bill being passed and the period of up to five years before people have access to such land. I am grateful to the Minister for making the position clear. I hope that the message will be passed on loud and clear.
I accept, as the Minister acknowledged, that there could be a conflict of interest. The noble Lord said that it is not a complex Bill. Having considered other Bills I understand why he used that expression. However, the devil is in the detail. I suspect that although much of the Bill would not be considered complex, it will have to balance the interests of land users, land workers and wildlife groups. Although the Bill may not be considered complex, it is a demanding Bill for consideration in this House. That is one reason why I wished to put forward this purpose clause.
The Minister referred to funding, an issue raised by several noble Lords. It is and will be a problem. I realise that the Minister cannot tell us about funding for the years ahead. However, when local authorities run short of money, it is the wardens of land open to access who go. Yet they are the very people who can help to protect wildlife and enable people to enjoy that access. It is not a subject we can dismiss easily.
I shall not reiterate what my noble friend Lord Brittan said so eloquently on human rights. I hope that the Minister will address the issue soon rather than wait until we reach that section of the Bill. We need to know the answer sooner rather than later.
816 In referring to the developing of areas, my choice of words did not reflect what I wished to say and could be misinterpreted. Perhaps the word should have been "enhance" or "ensure"; I shall try to think of a better word. I thank the noble Lord, Lord Bridges, for pointing that out.
I am grateful to the noble Lord, Lord Williamson, for raising so clearly the issue of mapping and the Government's need to give assurances on the timetable.
I thank my noble friend Lord Peel for his contribution. As he declared, he spoke from his practical experience of looking after areas which will now have a greater number of visitors. There is need for research into the implications for our ground-nesting birds, which we wish to preserve and protect. Mr Michael Meacher referred to that point in another place.
It would not be right to go through all the other points raised. I am grateful to every Member who has spoken. I hope that this purpose clause will not be dismissed. Although the wording may not be correct, I should like to reflect upon the issue. I do not intend to put the matter to a vote today. Although we have had good assurances from the Minister, I am not convinced that there is not a need for such a clause. However, at this stage I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 [Principal definitions for Part I]:
§ 5.30 p.m.
Lord Glentoran moved Amendment No. 2:
Page 1, line 10, at beginning insert—
("( ) In this Part "access land" means any land which is shown as access land on a map in conclusive form issued by the appropriate countryside body for the purpose of this Part.
( ) Land may be shown as access land on such a map if—
§ The noble Lord said: There will be inevitably some repetition in this debate. Despite the detail of many of the amendments, they are meant to be objective and helpful and not destructive or obstructive.
§ I spent much of the early part of my life introducing young people to the delights, dangers and excitement of the countryside; my heart is in that. However, I also learned that if people are not properly educated there is risk, hazard and—a matter which we must avoid—misunderstanding leading to conflict.
§ This group of amendments refers to mapping, which is the key to this part of the Bill. If the mapping process is understood clearly by all, and is undertaken fully, positively and with great clarity, it will be a tremendous bonus for future generations. Amendment No. 2 refers to mapping. The Bill does not provide for maps showing access land. The mapping 817 exercise merely shows registered common land and open country—"excepted" land, that covered by development—and land subject to other regimes is not marked or excluded.
§ The Bill should provide for mapping of access land. That provides certainty to walkers, farmers, landowners and public bodies. The benefits of this approach include the fact that walkers will be able to see from their maps where they can or cannot go. They will not have to apply difficult legal concepts such as "What is the curtilage of a building" while going for a relaxing walk because it will be clear from the map. Farmers and landowners will know which land is and is not subject to access. That reduces the prospect of mistakes and disputes about notices deterring access. In the Bill a genuine dispute about land being excepted will be determined on a criminal prosecution in the magistrates' court. Such mapping reduces the prospect of appeals on the mapping of open country. The present maps do not exclude excepted land. All a farmer concerned about the proposals can do is dispute the open country designation. Many of those concerns would be assuaged if farmers knew which of their land was excepted. Deleting the subsection is consequent on the new access land provision. Amendment No. 3 is consequential upon Amendment No. 2.
§ Amendments Nos. 6, 9, 28 and 30 are probing amendments about the application of access to common land. The Bill gives a right of access over registered common land. However, some common land is not registrable and so not registered; or is not common land for the purposes of the Commons Registration Act 1965. These exceptions include common land in the New Forest, Epping Forest and the Forest of Dean and common land subject to highway rights. Ministers said in another place—reported at col. 24 of the Official Report of the Standing Committee of 28th March—that historic laws provided for free access in the New Forest. How are those laws accommodated in the Bill? Do the access provisions apply in the Forest of Dean or Epping Forest? Are there other access rights? Do the access provisions apply to common land that is also a highway? Is the position different if the common land is also open country—if it is a heath, for example? Are Ministers satisfied as to why such land is excluded from access rights?
§ Amendment No. 7, tabled by my noble friends Lady Byford and Lord Peel, relates to fast-track access. I shall leave it to my noble friend Lord Peel to speak to that. By deleting subsection (1)(c), Amendment No. 8 would provide that a right of access to common land should arise only when mapping has taken place. By deleting paragraph (d), Amendment No. 10 would make the same provision for mountains.
§ There is a great danger in rushing in partial implementation of the access regime. I was relieved to hear some reassurances from the Minister in his reply to my noble friend Lady Byford on the previous amendment.818
§ If access is to work, it must adjust to local circumstances. That requires by-laws to be made, access points and signs to be provided and wardens to be appointed, trained and equipped. I hope that Ministers agree that that should be done before access is granted. Paragraphs (c) and (d) contain some of the provisions that rush in the regime before local mechanisms are in place.
Mr Meacher recognised in the other place that there should not be immediate access to land over 600 metres. On Second Reading, he said in response to James Gray:
I did not say that access to mountain land over 600 m would be available immediately. I said that that land is most easily mapped, but the hon. Gentleman is right—one must take account of accessibility".—[Official Report, Commons, 20/3/00; col. 725.]
He later said in Standing Committee on 28th March:
It was a slip of the tongue. I meant to say most easily identified rather than mapped".
§ The Bill currently provides access to such land without mapping. Mr Meacher's explanation still begs a question about identification.
§ Amendments Nos. 11 and 12 are somewhat technical. Amendment No. 11 would define "sea level" in paragraph (d). Sea level varies with tides from place to place. It is worth noting that Ordnance Survey uses mean sea level at Newlyn in Cornwall as the base for mapping. It is easier and clearer if the Bill adopts that standard. Ministers in the other place appear to have accepted that 600 metres would be measured from mean sea level at Newlyn, but that should be made clear in the Bill.
§ Amendment No. 21 relates to the definition of a mountain as higher than 600 metres. It is marginally out—I think that we heard that 600 metres is 1,975 feet, whereas I always thought that a mountain was 2,000 feet.
Amendments Nos. 28 and 30 follow on from Amendments Nos. 9 and 7. Amendment No. 84 would insert a subsection in Clause 2 saying:
Subsection (1) does not entitle a person to enter or to be on any access land unless the appropriate countryside body has issued a map showing the land as access land".
§ All those amendments would make the situation clearer through the mapping process. I beg to move.
§ 5.45 p.m.
§ Viscount Bledisloe
I support Amendments Nos. 2, 3 and 84, which relate to mapping. I shall not speak to the other, more technical ones. Indeed, I am not sure why they have been included in this group, but be that as it may.
I entirely agree that there must be definitive maps of all access land before access is allowed. I have two reasons for saying that, one particular and one more general. If there are not definitive maps of, let us say, a mountain of more than 600 metres, people will range. They may come into an area and start up a mountain at 600 metres, but when they come down the other side, unless they have a very accurate altimeter in their hand, how on earth will they know when they have passed from 610 metres to 590 metres? There must be 819 a definitive map before we start the process. The mischief is that if people start exercising such rights before there is a definitive map, they will get used to wandering over the hill and down the other side into the glen at a lower level. By the time the map comes along, they will not need to look at it because they will think that they know where they always go.
The issue is symptomatic of a lot of the problems in the Bill. There are many pious intentions, but no method of communicating them to the walkers who will be exercising the new rights. The Government have not thought out how a walker will know whether it is one of the 28 days when access is forbidden. He will not know whether there is a local order excluding extra access. Unless every walker carries a Bill, an altimeter, the local paper and a website with him, he will not have the capacity to obey the pious intentions that the Government have expressed.
Much of the debate on the Bill will relate to such issues. This is one good example of an area in which we could start with clarity and then let people in, rather than letting people in first and trying to secure clarity later. I hope that the Government will appreciate the problems that they are creating and show their good will by accepting the principles of the amendments.
§ Earl Peel
Like the noble Viscount, Lord Bledisloe, I have some doubts about the grouping, but since all these amendments have been grouped, perhaps it would help the House if I were to speak to my Amendment No. 7, which would remove the fast-track approach. It would preclude land above 600 metres and all registered common land being brought forward for access provisions. All such land would be treated in the same way as other land.
The noble Viscount, Lord Bledisloe, was right to talk about pious intentions. The Government hope that the issue will be resolved on a wing and a prayer. It is symptomatic of many provisions in the Bill. The people on the ground will have to pick up the pieces when the Government have gone away and forgotten about the Bill because they have satisfied their conscience and their manifesto. There is a real danger that owners and occupiers of land that would be covered by the fast-track procedure will be shortchanged. It is fundamental that, before access provisions are put in place, every owner and occupier should have an opportunity to negotiate with the access authority on whether there will be by-laws or closure orders and what sort of management structure there will be for the land.
I believe that there is a danger that if the fast-track approach is implemented the opportunities for negotiation will be lost. As the noble Viscount, Lord Bledisloe, said quite rightly, the danger is that people who wish to walk on those areas will assume that they can do so. They will go across land which perhaps under the Bill will be accepted because the footpaths to those areas have not been negotiated.
Therefore, quite frankly we shall end up with only muddle and conflict. I say to the Government in all sincerity that such a move would put the access 820 provisions of the Bill in a bad light and would lead to the kind of conflict that I believe we all wish to ensure does not occur. I believe that the good will which the Minister attaches to the Bill could he very seriously compromised. Therefore, my amendment removes the opportunities for fast tracking land above 600 metres and registered common land.
I believe that it would be helpful to receive an assurance from the Minister that the maps will be produced and published before any access is implemented and that owners and occupiers will have a full opportunity to discuss with the access authority the type of management regimes that ultimately will be imposed upon their land. Perhaps the Minister can give an assurance that there will be proper opportunities to discuss access footpaths to areas where no footpaths exist at present. Perhaps I may leave those questions with the Minister; I shall be very interested to hear what he has to say.
§ Baroness Strange
I should like to support some of the amendments but perhaps not all. However, I have received a great many letters from people who are very worried about access. I shall quote from one of them so that the Minister can hear the sort of things that people are saying. This is from a lady from Yorkshire who says:We worked and saved and did without to buy an area of land. We didn't strip it out to maximise its financial potential, instead we manage it to foster its biodiversity. We are not allowed to live on our land. We take no grants or subsidies except for I small grant on a separate piece of SSSI.My husband and I do the work on the land ourselves. It is hard steep chalk and the fencing is only just covered by the return from grazing. Any slight alteration in the economic picture will leave us unable to maintain it.… We struggled to buy legal ownership—the right to say who could or not be on the land. We bought in the open market. It is to be taken from us for nothing. Normally it is only criminals who have their assets seized.… I and thousands of other ordinary country people are not rich landowners as caricatured. We are going to have our lives made a misery. It is such a different matter for private individuals who own and work on their holdings with real personal love and involvement to land owned by an impersonal company or vast estate. Our children, our persons, and our possessions are to be put at risk just so certain others can follow a leisure pursuit. Is this what English Law is meant to do?
§ Baroness Young of Old Scone
I speak to Amendments Nos. 2, 7, 8, 10 and 84. First, I declare an interest as Chairman of English Nature.
I express concern that, if Amendments Nos. 2, 7, 8, 10 or 84 are agreed, the option for the fast-track process will be removed. I believe that it would be unfortunate if government were prevented from even considering the fast-track process as part of the implementation process. It is important that when the Bill is passed we see an expansion of access in practice on the ground fairly quickly and certainly within a reasonable period, otherwise the public will lose heart that a Bill of this sort has been passed at all.
The mapping process required to map the entire extent of access land and the types of concomitant considerations of restrictions and closures will be quite 821 lengthy, and I believe that the public will lose heart at that point. The mountain areas and registered commons have already been mapped. I believe that adequate procedures can be developed to handle—
§ Baroness Young of Old Scone
I am speaking to Amendments Nos. 2, 7, 8, 10 and 84. The noble Earl, Lord Peel, rightly drew our attention to the need for proper consideration of restrictions and closures before access to fast-track land is opened up. I believe that he is absolutely right. However, I believe that those restriction and closure considerations can be progressed quite quickly.
There is, of course, another alternative to the progressive introduction of access land. It would be possible to carry it out on a regional basis whereby the maps and concomitant consideration of restrictions and closures for particular regions of the country were completed so that entire regions could be opened up. I believe that that is a possibility and that perhaps—
§ Viscount Bledisloe
Will the noble Baroness give way? Perhaps I may suggest that that is precisely what can happen under Amendment No. 84. An area can be opened as soon as the map for that area shows that it is access land. No one is suggesting that the whole countryside must be mapped before access can be made available. Amendment No. 84 specifically allows that progressive approach.
§ Baroness Young of Old Scone
I am very grateful to the noble Viscount for drawing that point to my attention. However, if I continue perhaps he will understand that I am proposing two options as being possible. I believe that going ahead with the fast-track process in relation to mountains and registered commons is one way forward. An alternative may be to map on a regional basis and come forward sequentially region by region.
However, I believe it is important that we learn from the pilot which is currently under way on the mapping process. We should make a decision about how access land is to come forward in reality only once we have learnt the lessons from the pilots. Those results should be available quite quickly. The principle must be that access on the ground is made available to people at a fairly early stage. We should not lock ourselves in by removing the ability to have a fast-track process before we know the exact results of the pilot processes.
§ Lord Marlesford
Before the noble Baroness sits down, presumably she is not proposing that access be granted in any instance before the map is completed.
§ Baroness Young of Old Scone
I am suggesting that once land has been subject to the consideration of 822 individual restrictions and closures the fast-track process should indeed be opened up before the full mapping process has been completed.
§ Baroness Carnegy of Lour
Perhaps I may ask the noble Baroness another question before she sits down. Can she reply to the fear expressed by my noble friend Lord Peel that people may go to the top of a hill, come down the other side and assume that they can go on? It may be all right to do so on one side of the hill but one may not have a map to show that it is not all right on the other. Has the noble Baroness considered with her agency the answer to that matter?
§ Baroness Young of Old Scone
Perhaps I may clarify that I am not talking on behalf of my agency and shall not be doing so throughout the passage of the Bill. That would be inappropriate in terms of the procedures of the House.
However, I am drawing attention to the fact that, if we were to remove the provision for even considering the fast-track process, I believe that we should reduce the flexibility to find the best way forward to introduce faster, on-the-ground access than would be possible without the fast-track process being an option for government. It may be that, having seen the pilot mapping process, government would choose not to take that option. However, I believe that it would be wrong of us to remove the option. I suspect that that would lock us immediately into only one way forward which may be very lengthy.
§ The Earl of Onslow
Will the noble Baroness clarify something which she just said? She said that she is not speaking on behalf of her agency. If that is the case, is her agency capable of disagreeing with what she said? Does that not in effect put her in an extremely difficult position?
§ Lord McIntosh of Haringey
The position is very clear so far as concerns the rules of this House—the Addison rules. My noble friend is not allowed to speak on behalf of her agency. What her agency does is a matter for the agency.
§ 6 p.m.
§ Lord Greaves
I wish to speak to Amendments Nos. 10 and 21 which concern land over 600 metres. It is fairly clear why it refers to land over 600 metres: that is the nearest very round number to 2,000 feet.
I agreed with what the noble Baroness, Lady Young of Old Scone, said. She mentioned the question of how the mapping programme is to be undertaken. As we go through our discussions on the Bill, we shall be asking the Government to make it quite clear how they see the mapping timetable taking place. Will there be a national big bang in England and another one in Wales or are we to have regional maps produced at various stages of the mapping process? It has even been suggested to me that maps of different types of access land might be produced separately. That seems to me 823 to be a recipe for chaos. But that is a fundamental question which I shall continue to ask the Government until I receive an answer which satisfies me.
As regards land over 600 metres, I had the benefit last week of seeing on a computer screen a map produced by the Ordnance Survey of land over 600 metres in England and Wales. That can quite clearly be produced very simply indeed because there is a 600 metre contour already on its maps. So it can produce a map of that land very easily and I understand that it has already done so.
The truth is that in most of England, there is not much land over 600 metres. I want to know how big an issue this is. For someone like myself who is a mountaineer of sorts, the higher the land, the better. Therefore, land over 600 metres is obviously extremely important. There is obviously a lot of such land in the Lake District and quite a lot in the northern Pennines. There is some in the Pennines generally. But where else is it? I believe that there is one little bit in the southwest on the highest peak in Dartmoor, if Dartmoor has peaks. There is very little indeed elsewhere. We need to know the scale of the problem in relation to such land.
The maps exist. Therefore, the Government know how many areas of land over 600 metres there are in England and Wales. I am not so sure about Wales because my knowledge of it is not as great as it is in relation to England. Where are those areas of land? How many separate plots are there? How many of them are already effectively open to public access? Clearly, most, if not all, in the Lake District will already be open to access, as will many in the Pennines. At present how many remain not open to access?
I do not suggest that the Minister should stand up and wave a map at us now. But those maps exist and I ask the Minister to supply such a map so that we can have a look and make up our minds about this matter.
Finally, how many of those plots of land which are over 600 metres are not accessible at present by rights of way on foot? How many are in the position about which the noble Earl, Lord Peel, was speaking; namely, they cannot be accessed by a legal right of way? I do not know how many there are. There may be none at all. If there are none, we are wasting our time discussing the matter. But we need to know the answers to those practical questions.
§ Earl Peel
I appreciate what the noble Lord says; namely, that pieces of land over 600 metres in England are few and far between. But they do exist. I can think of one where there is no right of way.
But we must not forget that the fast-track approach applies not only to land over 600 metres but also to registered common land which is a different issue altogether.
§ Lord Whitty
There are two inter-related aspects here. The noble Lord, Lord Glentoran, dealt mainly with the definition of "registered common land" and most of the other comments have related to the fast-track procedure as such.
824 First, I agree with the noble Viscount, Lord Bledisloe, that we need to convey that there must be clarity before the right is triggered. I agree also with the noble Lord, Lord Greaves, that we should make sure that the timetable is understood. I cannot be more specific about the timetable than I was previously when I said that the totality of the mapping process may take up to five years. Nevertheless, in the Government's view it is sensible that where areas can be dealt with more quickly, and all the consultation and appeals procedures have been followed, the right should be triggered well before that.
The areas with which we are dealing in this group of amendments are registered common land and land over 600 metres and they are relatively easily mappable. Indeed, the noble Lord, Lord Greaves, is right that there is not a great deal of such land in England, although there is a great chunk of it in Wales. Those are easily identifiable by somebody marking a thicker line on the Ordnance Survey maps than currently exists. There is already a map register in relation to registered common land.
The amendments to which the noble Lord, Lord Glentoran, referred would remove the word "registered" from the term "registered common land". Therefore, that would remove the reference to the Commons Registration Act 1965. As I understand it, that Act was intended to end the anxiety about the status of common land and sought to finalise that position. I know that there have been subsequent criticisms of the Act but it has done quite a lot to clarify and codify what is common land in both England and Wales, and the corresponding rights, therefore, of commoners.
We issued a consultation paper earlier this year—Greater Protection and Better Management of Common Land—which set out the proposals for further reform. But in the mean time, the commons registration maps compiled as a result of the 1965 Act form a conclusive register of what is and what is not regarded as common land.
The amendments here would require the mapping authorities to reconsider each of those areas of common land to ascertain whether it should have common land status for the purposes of this Bill. Indeed, it could theoretically require the Countryside Agency to cast around and identify more common land which might have been omitted from those maps and registers. That is not the purpose of the Bill. Where common land may have been mistakenly registered and contains houses, gardens or similar developments, that land—this addresses a point made by the noble Lord, Lord Glentoran—would, in any case, be excluded from access by virtue of the categories of excepted land which are listed in Schedule 1 in relation to buildings, gardens and so on. So they may be within the contour of common land but those areas would be excluded. Therefore, I am not sure that I could go along with the noble Lord's suggestion that maps should show access land which identifies each of those buildings because Schedule 1 already ensures that the right of access will not extend to land excepted under 825 Schedule 1. We should not expect the countryside authorities to map every building within that area because buildings in general are excluded.
The noble Lord, Lord Glentoran, also raised specific issues in relation to existing access rights as regards the Forest of Dean, the New Forest and Epping Forest. The current status is that the Forest of Dean and the New Forest are not registered as common land and are excepted from the 1965 Act, but they are likely to qualify under this Act as open country. There is already very substantial de facto access in those areas.
There are existing legal rights of access in Epping Forest. Therefore, that is excluded from the right of access under Part I by virtue of Clause 15 which effectively reflects the general approach of this Bill that existing legal rights of access are not altered or reduced as a result of the Bill. So someone who is exercising a right of way or a right of access would not have that right modified by the Bill.
It would be wrong, therefore, to delete the term "registered". We already have a basis for mapping in the maps arising from those registers. On that basis, if we wished, we could speed up the process of identifying the land to which the access provisions apply.
Amendments Nos. 7, 8, 10, 84 and part of Amendment No. 2 would remove the option to fast track those areas of registered common land and also land over 600 metres. We have provided in the Bill for the right of access to apply to land which has been mapped as open country or registered common land. That will provide the necessary level of certainty for the future for both users and landowners. But the mapping process will take some time. The countryside bodies will need to identify whether areas of land fall into the prescribed categories. There will also need to be time for consultation before that right may come into effect.
That is why we have included a fast-track option for areas which can already be identified from existing sources. By definition, registered common land is shown on the registers. Mountains over 600 metres are already identifiable by contour lines on Ordnance Survey maps. We made amendments in Committee in another place which will enable applications for closure—and the directions which will give effect to them—to be made before the right of access comes into force. That procedure would also apply were we to adopt a fast track procedure in relation to land over 600 metres and common registered land. That means that, if we decide to use that fast-track option, if there are any concerns that land needs to be closed either on a temporary or permanent basis, it will be possible to ensure that such restrictions apply on the land immediately the right comes into effect. There will therefore be time for all the necessary arrangements to be in place on fast-track land just as on any other land.
Whether we decide to opt for fast-track proceedings will partly depend on the assessment by the Countryside Agency and the Government of how fast 826 we can move to the general mapping of land. Clearly, if the mapping process seems likely to be completed slightly faster than we currently estimate and indicate, the argument for a fast-track approach would be somewhat less. Even with the fast-track approach, the provision cannot be brought in overnight. It will probably take up to two years before it can be brought into effect and the necessary restrictions and closures identified.
On the other hand, as has been referred to earlier, we also have to bear in mind that people expect progress. If it is relatively easy to map the land from existing sources, they would expect progress on that front. Those who have concerns and interests within those pieces of land will have exactly the same rights as those who have concerns and interests about the rest of access land.
There is a detailed amendment regarding how sea level is measured. Reference was made to Newlyn. I have referred to the Ordnance Survey provisions. I believe that the two amount to the same thing. We might have another look at that but we feel that the reference to 600 metres is fairly widely understood, and would be the provisions used in the Ordnance Survey.
With those clarifications, I hope that one would be prepared to keep in the option for fast tracking land where there are already identifiable maps and descriptions of land, and that the rights of the owners of that land and others who have an interest are protected under that procedure as with the rest of the Bill. I therefore hope that noble Lords will not press the amendment.
§ Viscount Bledisloe
Did I hear the Minister correctly? Did he state that the Forest of Dean is likely to qualify as open country?
§ 6.15 p.m.
§ Viscount Bledisloe
Does the Minister believe that the Forest of Dean is wholly or predominantly mountain, moor, heath or down? If he does so believe, has he ever been to the Forest of Dean?
§ Lord Whitty
My grandmother came from the Forest of Dean. I agree that there are parts which would not fall within that category. However, there may be land which does. Obviously, the final outcome will depend on the assessment by the Countryside Agency. I picked up the reference to the Forest of Dean from the noble Lord, Lord Glentoran. It is possible that parts would so qualify, but I agree not all.
§ Lord Greaves
Can the Minister respond to my request for a map of land over 600 metres, as it exists?
§ Lord Whitty
I apologise to the noble Lord, Lord Greaves. I did say that he was right, broadly speaking. 827 It would probably be sensible for me to write to him and put a copy in the Library, possibly with a highly-coloured map attached.
§ Lord Glentoran
I thank the Minister for his usual clear explanation, much of which I found encouraging. As regards the amendments concerning registered common land and the Forest of Dean, Epping Forest and the New Forest, I have no trouble in withdrawing them.
However, I am still concerned about fast track. As we have discussed before, there are significant dangers of growing misunderstandings, particularly among the general public and the land-owning community. I shall not press the amendment to a Division today. However, I hope that the Government will think carefully before pursuing the fast-track approach as a quick and easy way to deliver something to the public which we might later regret. I understand the Minister's comments regarding land over 600 metres. However, there are access problems in many places. It would lead to confusion to say that one section is okay because a road goes over it or it is a right of way, and another section is not because it is inaccessible legally and technically.
I wonder how the pilot mapping process is proceeding? As I said at Second Reading, mapping on the scale of which we are talking requires much time. However, the technology nowadays is so advanced that I cannot believe it is the massive job it was 20 years ago. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 3 not moved.]
Baroness Byford moved Amendment No. 4:
Page 1, line 10, at end insert ("is more than 10 hectares in extent and").
§ The noble Baroness said: In moving Amendment No. 4, I shall speak also to Amendments Nos. 23, 24, 25 and 178. Perhaps I may also speak to Amendment No. 5 to be moved shortly by my noble friend Lord Caithness.
§ Included in the many and vast briefings we have received was one from the Countryside Agency. In its paragraph 4 it describes its recommendations and measures providing for the creation of maps as "sensible and adequate". Those are the words I am after as regards my amendments which deal with the size of land.
Amendment No. 4 inserts in page 1, line 10, the words:
is no more than 10 hectares".
§ The Government also recognise that there are pieces of open country which may be so small that access should not be required. I refer to Clause 4(5)(a). A similar point must also apply to common land. In both cases, the cost of signing, providing wardens, making bylaws and the trouble caused to farmers and land managers may well outweigh the value of providing access to such small portions. What is the point of the 828 right to roam if there is precious little land at that point over which to roam? That is why we oppose this minimum size of access land.
Amendment No. 5, shortly to be moved by my noble friend Lord Caithness, declares:
and is at least 5 hectares in size".
§ My comments also apply to his amendment.
§ I turn to Amendment No. 23 which leaves out the words from (a) and inserts "consists". I refer also to Amendment No. 25, in Clause 1, page 2, line 17, which, after "predominantly" sets in the figure which is 75 per cent or more in area.
These are in fact probing amendments. They attempt to persuade the Government that some parcels of land are too small to be included if we balance the requirements of people walking and those who work the land. First, Amendment No. 18 deletes the reference to land which,
appears to the appropriate countryside body to consist".
Therefore whether land is heath, moor, mountain or down is critical to the rights of the landowners and walkers and needs to be determined objectively. The Bill recognises that because the ground of appeal is that,
the land does not consist"—
§ Clause 6(3)(a), page 4. That is in objective terms.
Secondly, both Amendments Nos. 18 and 19 seek to delete the words "wholly or predominantly" so that "open country" means land which is,
mountain, moor, heath or down".
§ The term "predominantly" is wide, but its scope is unclear. Can the Minister say whether it means 51 per cent, 66 per cent, 75 per cent or more of the land? Amendment No. 20 gives a 75 per cent option. Therefore, what area of land is considered to be too small? Can it extend beyond the edge of the heath and, if so, how far?
§ Ministers said that "predominantly" means "prevailing" or "mostly"—Standing Committee, 4th April 2000, col. 115—which does not make the matter much clearer. The purpose is said to be to give some flexibility to the countryside bodies, yet that flexibility would be applied to take rights away from landowners. The Bill should provide tests that can be applied, rather than leave human rights to the whims of government agencies.
I turn to Amendments Nos. 24 and 25 which also come within this group. Amendment No. 24 seeks to omit the words "wholly or predominantly", about which I am seeking a clearer definition from the Minister. The mapping of access land should be focused closely on land which is,
mountain, moor, heath or down",
and not on land that is "similar to", "adjacent to", "partly" or even "predominantly",
mountain, moor, heath or down".
By enabling the Countryside Agency and the Countryside Council for Wales to map land which they perceive to be predominantly,
mountain, moor, heath or down",
there is a danger of substantial areas which are not,
mountain, moor, heath or down",
being included on the maps. To avoid that possibility the phrase "wholly or predominantly" should be removed from the Bill. Removal of the word "predominantly" would maintain the original government line taken in their access consultation paper in 1998 which referred to access being provided only to specific types of land; not to land and the land around it or bordering it which is not itself open country. The Minister said in relation to my purpose clause that this is not a complex Bill; I feel it is becoming more complex by the minute.
§ The term "predominantly" was used to describe "open country" in the National Parks and Access to the Countryside Act 1949. However, the context in which the term was used in that Act is quite different from the way it is used in this Bill. That Act defined the areas of land essentially for the purposes of making access agreements over them, while the current Bill is concerned solely with the imposition of statutory rights on owners. Where agreements are involved, a more relaxed definition is desirable. Where the statutory right is involved, the Government should be far more explicit as to which types of land are to be affected. Removing the word "predominantly" will go some way towards making what is currently an imprecise provision much more precise.
Given that Clause 4(5) allows the Countryside Agency or the Countryside Council for Wales to determine the boundary of any area of open country that can be treated as coinciding with a particular physical feature—for example, a wall, fence or road—it is not necessary for the agencies to have the discretion to include land which is predominantly,
mountain, moor, heath or down".
They have the flexibility under Clause 4(5) to include narrow strips of land or field corners which are not strictly,
mountain, moor, heath or down",
so as to delimit the parcels affected clearly in relation to physical features on the ground such as walls or hedges. No further discretion is needed to include on the maps land which is predominantly open country.
§ The Minister argued in Committee in another place that, rather than narrowing down what land should be mapped, the agencies responsible for undertaking the mapping should be allowed as much local flexibility as possible. However, the more flexibility that is provided, the greater the likelihood of regional variations in what land is or is not mapped. That may well lead to inconsistencies in the mapping.
§ An appeals system will be in place for those who feel that their land has been wrongly mapped. But without greater clarity over what land should be mapped, such appeals may create excessive burdens on the agencies concerned, extending the period before which any map may be published and the right of access put in place. By removing the uncertainty and having a clear-cut definition and a basis from which to map, the number 830 of appeals against land being included on the map would be minimised. An alternative might be to define "predominantly", for example, as meaning "more than 80 per cent of the land covered within the parcel of land being mapped".
§ I am sorry that these amendments are somewhat technical; but they are important. I beg to move.
§ Lord Brittan of Spennithorne
I fully support the amendment proposed by my noble friend. I disagree on only one small point of phraseology; that is, his description of the amendments as "technical". They are technical in a sense, but they also raise points of principle as well as practicality.
Of course, we are all agreed that there is no point in allowing a right of access to tiny parcels of land. We are also agreed that the provision that land should be mountain, moor or whatever in order for access to be granted should not be applied literally to mean that if a tiny bit is not, the right of access should not be given. Those are practical points. But the point of principle is who decides and how it is to be decided where the boundaries apply.
Essentially, the scheme set out in the Bill leaves a high degree of discretion to the public agencies concerned. The question this Committee must decide is whether we want those broad definitions to be applied using words like "predominantly" in relation to the size of the land, giving the discretion to the agencies concerned, or whether we want to be more precise.
I believe that my noble friend's point is absolutely correct. When it is a question of agreement or something of that kind, looser language may be appropriate. But when we are talking about legal rights which, by definition and by concession, take away existing property rights, we must be precise. It is right that those should be determined by Parliament and not by government agencies, however well meaning and even if a right of appeal is provided. For that reason, I believe that the provision to allow the exclusion of small parcels of land should take the form of a definition with a number, whatever it may be, relating to the size and area of land which is excluded, rather than giving the discretion to the agency to take a view.
Similarly, at the other end of the scale, the decision that land can be included if it is—perhaps I may use yet another adverb—overwhelmingly land which comes within the specified categories should not be determined simply by the use of an adverb, whether "predominantly" or any other, which must then be interpreted by the government agency. It should be set out in a more precise form.
Therefore, one should say either—and perhaps going to the extreme—that the whole of the land must be of the category concerned, or—if that goes too far and I suspect that it does—that a specified percentage should be applied. That seems to me to be preferable.
The point of principle is whether decisions on land ownership and legal rights over land be made on a discretionary basis by a public agency or whether they 831 should be determined specifically and precisely in an Act of Parliament. On that point of principle, I am firmly of the view that it should be the latter rather than the former, and that is why I support the amendments.
§ 6.30 p.m.
§ Earl Peel
Having put my name to Amendment No. 24, I want to concur with everything said by my noble friends and I have no intention of repeating it. The provision in the Bill is far too woolly and vague and will give ridiculous opportunities, no matter how well meaning, to the relevant access authorities.
I want to refer to a particular issue and I do not know whether my noble friend Lady Byford did so. I should have thought that Clause 4(5)(b) gave enough flexibility to the relevant access authority to deal with the point raised. I am not happy with the wording, but it tightens up and constrains the mapping process to particular physical features, rather than relying on the woolly expressions "wholly" or "predominantly". Perhaps in reply the Minister will tell the Committee whether that provision is sufficient to deal with the problem.
§ The Earl of Caithness
I rise to support Amendment No. 4 and to speak to my Amendment No. 5 because the arguments are the same. The purport behind the amendments tabled in my name is to make the Bill as workable as possible. Although I am no longer a land agent and will not have to implement such legislation, I still have many friends in my old profession. I am interested in it and they have made many representations to me as regards the practicalities of how the Bill will work when it becomes law. That is what I am trying to improve.
My noble friend Lady Byford referred to the complexity of the Bill. It is not the most complex piece of legislation ever to come before us but the grouping of the amendments has made it infinitely more so. The previous group was a real dog's dinner and this one is not much better. It brings together two totally different subjects, making it more difficult for the Government to reply sensibly and for us to follow that. I should think that it is impossible for anyone outside to understand what the heck is going on! Having studied the groupings more closely, I shall certainly degroup some of my amendments and I hope that other Members of the Committee will do the same. We should then be able to have a better and more focused discussion.
My noble friend's amendment is aimed to give greater clarity to the qualification found in Clause 4(5)(a) and underlines the fact that including small areas of land is impractical, extravagant and of limited appeal to walkers. Exclusions of parcels of land this size will not affect visitors' ability to walk through the most rewarding part of the English countryside. It will, however, reduce the administrative burdens on access authorities. An unlimited pot of money will not be available to access authorities so they must ensure that the available money is used in the best possible way. Even a 10 hectare area of land will absorb funds for 832 mapping, provision of facilities, possible staffing needs, maintenance and other expenditures. As we all know, the small jobs always take up the most time and are the most costly. That money could be better used elsewhere.
Such a small patch of land will probably be of limited attraction to walkers, yet the mapping authorities must ensure that access to it is available across whatever land stands between it and other access land, and that will absorb more funds. Some small areas of land will include outstanding natural features, such as waterfalls, but the public already have access to the great majority of them and the Bill allows for and encourages voluntary access agreements.
The amendment is also intended to ensure that there is a consistency of approach across access authorities so that certain small parcels of land will be excluded, under whichever authority they fall. That will reduce uncertainty, as was said by my noble friend Lord Brittan, and it will reduce the number of court actions and their associated costs. Furthermore, it will reduce the impact of the Bill on many small landowners and residents of the countryside, the kind of people referred to by the noble Baroness, Lady Strange, when debating the previous group of amendments. I hope that the Government will give serious consideration to Amendment No. 4.
§ Baroness Miller of Chilthorne Domer
As regards minimal land sizes, in particular in southern Britain, the public would like access to many areas of land. I refer to those which have become isolated—for instance, the tops of downs or tors—in areas where the rest of the land is now cultivated. It would therefore be a shame to impose a minimum limit on the size of the land.
The noble Lord, Lord Brittan, asked whether we want the agencies to have sole discretion over where the boundaries should be. I would say that we do not. That is the purpose of our Amendment No. 156. We believe that however precisely the Bill is drawn as regards the definition of land, it will never be precise enough to address all the margins of land which are difficult to define. A better way of doing so would be to provide a broader definition and then to allow local landowners, users and the access authority to reach a consensus and advise the agency.
Norfolk County Council wrote to me about the issue pointing out the heathland in that area. Heathland must be more than 10 per cent heather but much of Norfolk's heathland is grassland. Much of Norfolk's common land is now foreshore but some of it is cultivated. As I read the detail, I realised that the permutations were vast and that the wording which might appear in a Bill would never cover all the points made. That is also true around the margins of downland and Exmoor, which I know better. Some issues will always be better resolved locally around the broad definition.
§ The Earl of Onslow
The noble Baroness spoke reasonably about people sitting around a table and reaching agreement. There is no difficulty about that; 833 difficulty arises when there is disagreement. Unless there are proper and well defined guidelines or statutory provision, the Bill will be a pig's ear. All governments are prone to "lex earum porcum", or whatever it is, and as regards some issues, this Government are in danger of repeating what happened with the Dangerous Dogs Act. We must not allow them to do that.
§ Baroness Farrington of Ribbleton
I am sorry that the noble Earl, Lord Caithness, believes that it will be difficult for me to give a detailed and careful answer, but I shall attempt to do just that.
Amendment No. 4 would require any area of access land to be at least 10 hectares in extent and Amendment No. 5 would restrict right of access to open country of at least five hectares in extent. We have given the countryside bodies a practical and flexible discretion not to map areas of land which are so small that they believe that their inclusion will serve no useful purpose. That will enable them to exclude small parcels of land which would involve wholly disproportionate effort and cost to survey and consult upon. They may decide to adopt different thresholds in relation to different types of land. We see no reason to interfere with that discretion.
The noble Baroness, Lady Byford, spoke about size. We appreciate that in some parts of the country, or on some categories of land, five or 10 hectares may be considered a small area that it is appropriate to omit. Those are precisely the circumstances in which the countryside body may well decide, in line with its discretion in Clause 4(5), that the inclusion of such land serves no useful purpose. At the same time, it is worth bearing in mind that 10 hectares is approximately equal to 15 football pitches. In certain circumstances even five hectares is a sizeable area of land. There will be circumstances where to fail to map an area of five or 10 hectares omits a significant area of open country which would serve a useful function in relation to a new right.
The Bill requires the countryside bodies to map all parcels of registered common land of whatever size. Amendment No. 4 would apply a minimum area of 10 hectares to common land as it does to other access land. I believe that that is an important response to the noble Lord, Lord Britian. Three-quarters of all registered commons in England are smaller than 10 hectares in extent and they are often the only uncultivated, unenclosed land within an environment of intensively farmed agricultural land. We therefore wish to resist amendments which would apply an arbitrary size threshold to the mapping of open country or registered common land. I ask the Committee to picture for a moment the totally different circumstances in North Yorkshire and a heavily cultivated area of the country.
The question of land to "consist" of the open country categories is dealt with in Amendment No. 23. That amendment places a duty upon the countryside bodies to map land which consists of mountain, moor, heath or down, rather than land which "appears" to 834 them to be of one or more of those categories. The countryside bodies will publish the criteria that they will use to help identify each category. They have already published earlier this year a National Countryside Access Forum paper which gives some indication of what those criteria will comprise.
However, the exercise is not purely an automatic one. It involves more than the simple application of a set of rules. The countryside bodies will need to exercise an element of judgment. The words in the Bill reflect that, and, incidentally, are the same as those used in the National Parks and Access to the Countryside Act 1949 and the Countryside Act 1968. To omit the words "appearing to them" might mislead people into thinking that no element of judgment was involved. As the Committee has accepted, landowners will have a right of appeal to the Secretary of State or the National Assembly for Wales if they do not believe that their land consists wholly or predominantly of open country, and that provides the necessary safeguard for their interests.
Amendments Nos. 24, 25 and 178 would remove or limit the discretion for the countryside bodies to map land which is predominantly mountain, heath or moor. In response to the noble Earl, Lord Caithness, the Bill enables countryside bodies to include on maps of open country any small outcrops of land which may not fall squarely in the definition of "mountain, moor, heath or down" but which are part and parcel of a much larger area of land which does fall within those categories.
The noble Earl, Lord Peel, raised a detailed question relating to Clause 4(5)(b). He questioned whether it would provide an adequate substitute for "wholly or predominantly". This clause gives countryside bodies discretion only to extend the boundary of open country to physical features. "Wholly or predominantly" is about including small areas of land which are not open country within larger areas of open country. For example, heaths will often contain scattered clumps of trees. To attempt to exclude them all would make little sense either in mapping terms or on the ground, and it would be practically impossible to do so. Equally, it would be impossible to make clear where the right of access was and was not available.
The noble Baroness, Lady Byford, and the noble Earl, Lord Peel, referred to the lack of precise definition of the term "predominantly" and its rigid application in every case. We do not intend that it should have that degree of rigidity. It must allow a reasonable level of discretion. It will not allow substantial areas of other categories of land to be mapped as open country, but it will mean that proportionately small areas of land, such as scrub or trees on heath land, or pools on moorland, which are part of a much larger area of land that clearly comes under the definition of open country, need not be excluded from the maps.
§ 6.45 p.m.
§ Earl Peel
I appreciate that the noble Baroness seeks to be helpful, and I take her at her word. However, the Minister said that large tracts of land would not be 835 incorporated in the term "wholly and predominantly". The noble Baroness cannot give any guarantee that that will not happen. At the end of the day, it will depend on how the countryside bodies decide to implement these provisions.
§ Baroness Farrington of Ribbleton
The kind of assurances that the noble Earl seeks are contained within the proposed provisions. I shall deal later with the point which I believe the noble Earl is leading towards; namely, a precise definition in percentage terms. In drafting this legislation we seek to ensure that we do not include areas that would be impractical and create difficulty and uncertainty for users and landowners alike. I can assure the Committee that the test of "wholly or predominantly" will most definitely not lead to the wholesale inclusion on maps of land which is not open country, but will enable the mapping to be carried out in the most sensible way. I have already referred to the right of appeal to the Secretary of State or the National Assembly should the landowner claim that the countryside body has exercised its discretion unreasonably.
Amendment No. 25 would define "predominantly" as at least 75 per cent in area. Specifying an arbitrary percentage is not the right approach. Seventy-five per cent of what area? For example, it might be entirely appropriate and sensible to include, say, a clump of trees within a much larger area of heath, but the same clump of trees might well be excluded if it was located at the edge of the same heath or the heath was very small. In another place the honourable Member for Cambridgeshire South East, Mr James Paice, happily accepted that a percentage figure would be too specific. I believe that that also deals with the point raised by the noble Lord, Lord Brittan. The reality is that often there will be a gradual transition from one type of land to another rather than an obvious hard and fast line. However, I reassure the Committee that if any sizeable area of land is to be mapped as open country it will need to be entirely, or almost entirely, mountain, moor, heath or down. I hope that that reassurance goes some way to clarify the point raised by the noble Earl, Lord Caithness.
It is in everybody's interest that minor adjustments should be possible so that the boundary makes sense on the ground and preferably coincides with recognisable features for ease of identification and navigation. I assure the Committee that we do not seek to allow the inclusion of vast tracts of otherwise ineligible land. It is a common-sense provision to deal with the reality on the ground, which may vary from place to place.
Before issuing provisional maps, the countryside bodies will consult very widely on where the boundaries of access land should be and will consider the advice of local interests, including local access forums. Therefore, I can reassure the Committee that in exercising this discretion the countryside bodies will be at pains to be fair and objective in their judgments, and the opportunity for landowners to appeal exists. I apologise to the Committee for replying to this group of amendments in detail. I was concerned about 836 the fear of the noble Earl, Lord Caithness, that because of the large group he would not get detailed replies. I hope noble Lords will withdraw their amendments.
§ The Earl of Caithness
Will the noble Baroness confirm that the argument which she used with regard to the amendment of my noble friend Lady Byford regarding common land does not apply to my Amendment No. 4? She specifically said to my noble friend Lord Brittan that three-quarters of registered common land would be included under the 10 hectares point. That would appear in line 10 of the Bill as now printed. My amendment is in line 12. Therefore, the argument she used would not apply to my amendment.
§ Baroness Farrington of Ribbleton
It is obviously the case that where a large group of amendments are together there may be matters relevant to only one particular amendment. I apologise to the noble Earl if that has happened here.
§ The Earl of Caithness
What I am seeking from the noble Baroness is clarification that the argument she used in relation to a comment made by my noble friend Lord Brittan does not apply to my amendment, Amendment No. 5.
§ Baroness Byford
I thank the Minister for her response. Indeed I meant her no discourtesy. The grouping has been somewhat confusing. I accept the point she made in her response to my noble friend the Earl of Caithness. In response to one of the comments made by my noble friend Lord Brittan., she said that she felt it was right that flexibility should be in the hands of the agency and not defined by Parliament. That concerns me greatly because there will be great differences around the country. Perhaps that is something which the Government are seeking and think will be a good idea. But some of us have reservations about the degree of flexibility involved. I had in mind that I might divide the Committee on that matter. At this stage I shall not. That is why we appeared to be slightly discourteous to the Minister. I was trying to clarify which parts were relevant. I beg leave to withdraw my amendment.
§ The Earl of Onslow
Before my noble friend withdraws her amendment, something has arisen in this short debate which is extremely valid and interesting. My noble friend partly touched on it. There are different circumstances in different parts of the country. That does not take away from the fact that the land ought to be able to be defined more clearly. It must be possible to define rules for land which was enclosed early on in small, tight areas as against larger areas of land which were enclosed later, with bigger fields and so on. It must be within the wit of man. Please, please, oh Government, do not leave wishy-washiness about, because it will cause trouble as it always and invariably has.
§ Baroness Farrington of Ribbleton
The idea is not to have flexibility in terms of the principles underpinning 837 the legislation, but to recognise that it is at local levels that local circumstances need to be taken into account and that circumstances will vary enormously in different parts of the country. For that reason we believe, having convinced the honourable Member for Cambridgeshire South East, that to apply rigid and arbitrary percentage point cut-offs would not be in anybody's interests.
§ Baroness Byford
Before the noble Baroness sits down, perhaps I may follow on the comment made by my noble friend Earl Onslow and pick up her point about flexibility. My noble friend indicated that not only would we rather have the matter more closely defined on the Bill but also, if legal challenges do come as a result of interested parties not agreeing, the fact that there is so much flexibility without set guidelines will make it difficult for the courts to decide who is right and who is wrong. I hope I have that right. Perhaps my noble friend would like to add to that? Allowing such flexibility will actually bring problems when the Bill is enacted.
§ The Earl of Onslow
That is exactly the point I am trying to make. Of course there are variations in the countryside. Everybody accepts that. That is the glory of the English countryside. What I suggest is that the rules should be sufficiently tightly drafted so that those variations can be taken into account and there is not room for wishy-washy, half thought-out appeals and so on. That is the point I make. Of course there are differences between Surrey and Yorkshire. We know that. We should be able to draft sets of rules—by regulation if you like—which will take those matters into account.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 5 and 6 not moved.]
Earl Peel moved Amendment No. 7:
Page 1, line 14, leave out paragraphs (c) and (d).
§ The noble Earl said: I beg to move the amendment, to which I have spoken already. I shall not rehearse the arguments again. Perhaps I may respond to the points the Minister made, which I thought were helpful. I am not concerned about the timing. What I am concerned about is that those people with land areas greater than 600 metres and with registered common land should not be disadvantaged. I think I am right in saying that the Minister did give a firm assurance that anybody owning land of that type would be afforded exactly the same levels of negotiation with the access authority, that the maps would be published before access was implemented and that the opportunities for discussing by-laws, disclosure orders and general management practices would be dealt with before access was implemented. I seek confirmation that that was the assurance the Minister gave to the Committee.838
§ Perhaps I may raise two other points which I think are relevant to this amendment. First, on the question of access points; presumably there will be opportunity for access points to be on the land, even though the fast-track system is implemented. I think that is an essential part of the whole information service to the general public. Secondly—a point I was not quite certain about but I am sure must be right—if any of this land is not serviced at the moment by footpaths, that those footpaths will be fully negotiated with the landowners and farmers concerned. Assuming that I get those assurances from the Minister, I shall withdraw the amendment. I should like to hear what he has to say.
§ 7 p.m.
§ The Deputy Chairman of Committees (Baroness Turner of Camden)
I have to inform the Committee that if Amendment No. 7 is agreed to, I cannot call Amendments Nos. 8 to 13 inclusive.
§ Lord Whitty
On the noble Earl's first point, in essence I can offer reassurance. The process of mapping will mean that the position is somewhat different where there is a clear contour definition of the area. I said that the ability to put in for restrictions, closures, exceptions and so on and the whole structure of appeal would be the same as for the end of the mapping process in other areas and that that process would be completed before the right was triggered.
On the question of access points and access where there is not a right of way to the land at the moment, we are about to come on to amendments which deal with precisely those points.
§ Lord Jopling
Before the Minister sits down, I wonder whether he would clarify a matter which arises under paragraph (c) and is also referred to at the end of the clause. The clause states:'registered common land' means land which is registered as common land under the Commons Registration Act 1965".I vividly recall the passing of that Act all those years ago because the Committee in another place which considered the Bill was the first one on which I served. I remember it extremely well. To what extent are there still pieces of land which were originally registered under the Commons Registration Act 1965 within the first time period and which then had to be argued about in the years following? Are there still matters in dispute which have not yet been settled with regard to registering common land under the 1965 Act? That is a rather important point in considering the Bill because when we talk about registered common land we really ought to know whether everything has been tidied up in commons' registration. Indeed, the original intention was, first, to register common land—where it was, who owned it, who had what rights on it—and then to move on as a second stage to having management agreements.
839 I have spoken for long enough. I see that the Minister has received a note. I hope that he will be able to tell us the position with regard to land which was registered but the legal position of which has not been clarified.
§ Lord Whitty
I touched on that point at an earlier stage. I am not sure whether the noble Lord was present at that point. The Commons Registration Act 1965 led to the registration of common land. The criticisms which have come relate to areas which have been registered where people are still arguing as to whether it should be registered. As far as concerns this Bill, if they have already been registered, they are covered by the Bill's provisions even though there may be some argument. There is no legal right of further argument in that respect. With regard to areas where there are still legal disputes, those legal disputes relate not so much to the designation of the land as to the common rights over the land. Particular disputes are still outstanding in that respect in relation to areas in south Wales. There are then those areas which should have been registered. They would not be covered by the Bill. In other words, we are having to take the register, warts and all. There are not that many outstanding legal disputes, certainly not on the designation of such land.
The Government have recently issued a consultation document on the future management of common land and greater protection for common land. There are therefore proposals for reform in the pipeline. However, the Bill does not cover that. For the purposes of the Bill, it is the land that is already registered.
§ Lord Whitty
My point on that is that we are about to come on to a group of amendments which deals with those matters.
§ Lord Whitty
If we unravel the grouping, we will not get very far tonight. The noble Earl is concerned about islands of land.
§ Lord Whitty
The land will be dealt with in the same way. As I have just explained, in terms of fast-tracked, over 600 metres land, the right of people to suggest restrictions, closures, modifications and so on will be exactly the same. Whether the outcome of those negotiations or agreements would cover every aspect 840 of access to that land would depend on how those negotiations went. I could not give an absolute assurance that the question of access to islands of mountain land would necessarily be resolved. But if they were addressed by people with an interest in that land, we have a process which is capable of resolving them.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 8 to 12 not moved.]
Lord Glentoran moved Amendment No. 13:
Page 1, line 17, after ("level") insert ("and which is accessible to the public by any highway").
§ The noble Lord said: I am not quite sure why Amendment No. 13 is in this grouping as it deals with matters which in part have already been addressed. It would be helpful if the Minister could see his way to accepting the amendment. At the moment the Bill provides that any land more than 600 metres above sea level will automatically become access land subject to the right of access. There is no prior requirement, as there is for other access land, for such land to be mapped by the Countryside Agency or the Countryside Council for Wales before that right comes into effect. That raises the prospect that once the Bill becomes law people will seek to gain access to mountain tops across intervening land over which no right of access exists.
The amendment refers to land over 600 metres above sea level,
which is accessible to the public by any highway".
I interpret "highway" as being any route that is open and accessible legally to the public. If that were acceptable, it would certainly make us feel a good deal more comfortable about the areas of mountains over 600 metres and would avoid the business of having to go through inaccessible land and the pressures of the public wanting to have access to mountain tops to which there is no right of access. So if we put on to mountain land—that is, land over 600 metres—the proviso,
which is accessible to the public by any highway",
that would, I believe, be helpful.
Amendment No. 16 concerns the definition of "down":
"down" means only that downland which occurs on a chalk substrate and which is found south of the line of latitude 53 degrees north".
§ I shall explain the amendment. In the minds of most people, the term "down" conjures up a vision of the open chalk grasslands of the South Downs, the Marlborough Downs or the North Downs of Kent. That is the kind of land most people would expect to find mapped as "downland" for the purposes of rights of access under the Bill. However, in geological terms, it can be argued that grasslands on limestone substrates should also be considered as downland. 841 This would bring within the scope of the Bill the grasslands of the Cotswolds or the Yorkshire Dales, which are of a quite different character. Greater clarity is needed about precisely what types of land should be mapped as "down" for the purposes of the Bill.
§ The amendment suggests one approach. It would focus the mapping on areas of chalk grassland south of the line of latitude 53 degrees north—roughly from Wrexham through Stoke-on-Trent and then to Boston in the east. Areas of grassland or limestone substrates north of that line would be excluded unless they also qualified as "moor" or "heath".
§ Whichever approach is adopted, it is important that all interests are aware of the criteria. That brings us back to the argument about identifying areas of downland. Can the Minister indicate what ecological, landscape or other criteria the Government plan to use for identifying areas of downland? For the purposes of the Bill, what is the definition of down? The definition we recommend is the geological definition which, I understand, is perfectly reputable and correct.
As regards Amendment No. 17, which states that,
"land" does not include land predominantly covered by water";
the access provisions are concerned with rights of access on foot. Schedule 2 prevents the use of vessels or sailboards on non-tidal water and also prevents bathing. The issues surrounding rights of navigation should be considered separately. This amendment seeks to exclude from the access regime land covered by water. The inclusion of the word "predominantly" prevents any suggestion that mountain streams which can be crossed easily should be excluded from access land. The amendment seeks only to exclude inland lakes of one kind or another.
§ Amendment No. 27 seeks further to probe the Government's definition of downland. Amendment No. 33 will be spoken to by my noble friend Lord Caithness. I beg to move.
§ 7.15 p.m.
§ The Earl of Caithness
It may be convenient to the Committee if I did not speak to Amendment No. 33 at this point, but rather degrouped it. It concerns a totally different subject from that addressed by Amendment No. 13.
§ Lord Jopling
I should like to speak briefly in support of Amendment No.16 which has been moved by my noble friend. I have lived all my life both in and within sight of the Yorkshire Dales and in another place I represented a part of the Dales. I cannot believe that it is the Government's intention to include, even if only by accident, parts of the Yorkshire Dales under the definition of downland. The Dales are totally different both geologically and ecologically.
It would be a mistake if, even by accident, a part of the Yorkshire Dales was to be included in the definition. It does not make sense. When we consider downland, I believe that we are all referring to land with a chalk substrate. I hope that the Government will agree with that point.
842 If the Minister feels unable to accept Amendment No.16 as presently drafted, I hope that he will be able to return with a suitable amendment on Report.
§ Lord Brittan of Spennithorne
I should like to support fully what has just been said by my noble friend Lord Jopling, having had a similar but rather shorter experience of living in and representing a part of the Yorkshire Dales. It is clear that the area is completely different from the normal concept of downland. For it to be caught, as it were, in a "sidewind" of the definition for the purposes of the provision, would be quite wrong. I hope that the Government will take that point on board.
Perhaps I may also comment on the provision set out in Amendment No. 13, which adds,and which is accessible to the public by any highway".I am sure that my noble friend would agree that the relevant point here is not that the access point should be a highway, but that it should be a legally accessible public right of way of one kind or another. This problem might be described as one of sequencing. If a mountain area is dealt with first, a situation will soon arise where people do not have a right of access across the open country leading to that mountain area, but do have a right of access to the mountainside.
After the mapping procedure has been completed and rights across open countryside have been granted, the provision might then be reasonable. However, I think it would be wrong to make an absolute provision granting access to mountain areas in advance of that process. That will cause confusion and give rise to the possibility of illegal attempts being made to pass through the access land. At least until the mapping process has been completed, it would make much more sense to provide that a right of access to a defined mountain area should be given only where a public right of way is already in place.
It may be that the wording of the amendment needs to be looked at again, but in its spirit and principle it is a practical provision and one that I hope the Government will take on board.
§ Baroness Lockwood
I am a little confused by the words of those noble Lords who have spoken in support of this amendment. Several speakers have referred to the Yorkshire Dales. The Dales are limestone dales, but one part of East Yorkshire—the Yorkshire Wolds—is chalk based. The wolds would therefore be excluded from the amendment, were it to be accepted. No doubt confusion could arise when trying to define the Yorkshire Wolds and the Yorkshire Dales.
§ Lord Greaves
As regards Amendment No. 16, I wish to question whether we should attempt to define areas by their underlying geology. I believe that, as a basic principle, we should not define areas in those terms. What we are properly discussing here are different types of landscape. We should consider the problems and ask, "Is the landscape in a particular area which ought to qualify under the broad definition 843 of 'open country'?" The categories of mountain, moor, down and heath are the best means of defining open country, which would otherwise be difficult to define. Any attempt to arrive at a geological definition would be wrong.
When referring to the areas of hill land known as the "downs", it is right to talk about the downlands of southern England, which happen to be on a chalk substrate. However, then to impose a cut-off at the 53rd parallel is not logical because that chalk substrate extends further north, as has just been pointed out by the noble Baroness.
I am not sure that there is a great deal of open country in the Yorkshire Wolds, but there may some—in particular around Flamborough Head. It is therefore illogical to define downland as being land on a chalk substrate, but then to cut off some of that chalk downland because it happens to extend too far north.
A more basic and fundamental issue has been raised here, one that has been touched on by those noble Lords who take a different view from my own. There are areas of limestone grassland which are not known as "downs" in the local parlance, but which nevertheless should qualify as open country and thus as access land under the terms of the Bill. If the word "downs" is being defined in a wider sense to include those, I am happy with that. I do not agree with Members of the Committee, such as the noble Lord, Lord Brittan, who do not want to include them.
There are parts of the Cotswolds—not many—where there is still open limestone grassland. That should be included as access land if similar areas in the North Downs and the South Downs, for example, are included. There are parts of north-east Yorkshire, on the Jurassic limestone on the southern fringe of the north York moors, which should probably be included; they do not qualify as "moor" in the way that most of those moorlands do. There are certainly very large areas of the Pennines and other areas on the carboniferous limestone which are open limestone grasslands and should be included as access land under the Bill.
The question I ask the Government is the other side of the coin to the question being asked by some of the Conservative Members of the Committee: that is, are those areas of limestone grassland, which are clearly open country, which are ecologically very similar to the chalk—but that is a different issue—many of which are open to access at the moment, included in this legislation? For example, there are areas of the Yorkshire Dales and areas of Derbyshire (the Peak District) with open limestone grassland; there are hills in north Lancashire and hills such as Warton Hill and Farleton Hill which are very important from an ecological point of view, particularly in regard to plant life, which have some access at the moment. That kind of land is already being managed by the owners and the conservation bodies to combine access and ecological conservation concerns in a very effective way. Will those be included in the Bill? They ought to be.
844 I agree that there is confusion over the word "downland". It should be clarified but, in my view, it needs to be clarified in the opposite way to the way in which noble Lords such as the noble Lord, Lord Brittan, want it clarified.
§ Viscount Bledisloe
I had not intended to speak but a point occurs to me in the light of what the noble Lord has just said. The Bill defines "open country" as land which appears to the appropriate countryside body to consist wholly or predominantly of various things, including down. If the noble Lord says that the Cotswolds are down, the Cotswolds are down whether they are fenced or unfenced. There is nothing here which says that "open land" is "land which is open and which … ". Therefore, if that land is down geologically—or whatever the other definition of "down" may be—it would suddenly become open country even though in reality it is closed country. That is a very worrying concept. I was not moved by the amendment until now. If it is going to be suggested that there is a wider geological or technical meaning to "down", that needs tying down, otherwise it may lead to land being "open" which in no sense of the word is open country at all.
§ Lord Greaves
The point I was making is that it should be based on landscape, not the underlying geology. Quite clearly most of the limestone grassland in areas such as the Cotswolds and Pennines is enclosed in fields, often with drystone walls; it is not open country and should not be included in access. However, there is some country which is open country, which is not enclosed, and should be included.
§ Viscount Bledisloe
The point I was making is that anything which is "down" is, under this definition, open country whether or not it is open in reality. If the noble Lord thinks that "open" Cotswolds land should be included, then a clear definition of "down" is needed, such as, "downland means open land which has the following features".
§ Lord Whitty
This is a slightly disparate group of amendments and we are making quite a meal of it. Perhaps I may take the amendments in order. Amendment No. 13, which is the first one referred to by the noble Lord, Lord Glentoran, relates back to my recent exchange with the noble Earl, Lord Peel. This is a question of fast-track land where there is no highway approaching it—and "highway" is used in the broadest terms and could include the humblest footpath.
As I think the noble Lord, Lord Brittan, was hinting, it may well be that there are forms of access other than a formal right of way or a formal footpath or highway. Land tangential to it may well already be access land, either by law, by de facto access, there may be a permissive path at the discretion of 1 he owner or there may already be wide access. Much of the Lake District would fall into that latter category. It is not only a question of a path or a road but of whether there is access around the area of what would otherwise be 845 automatically designated as falling under the fast-track procedure. Defining access in terms of "highway" is wrong.
In addition there is the process to which I referred in my exchange with the noble Earl, Lord Peel. The process of restrictions and modifications may well include issues of access. Although I cannot give a guarantee that the outcome will always be that no land without a highway or other form of access to it would be so designated, that is the process for resolving that and other issues. I do not think that we need this amendment.
With the benefit of the geographical knowledge that the noble Lord, Lord Greaves, imparted to us earlier, one realises that the area of such land in England is relatively small. But there may be temporary and beguiling islands of access land. They will be relatively few and many will be contiguous to areas where there is already some form of access; others could be dealt with through negotiations on restrictions.
§ Lord Brittan of Spennithorne
Before the Minister passes on to another point, I am more confused than enlightened by what he has said. It is all very well to talk about the process but, as far as I can see—leaving aside the point that there may be de facto access and legal access by means other than a highway—I cannot see anything in the Bill as currently drafted to ensure that until there is legal access (whether as currently or under the other provisions of the Bill) under the fast-track procedure, there is not a right of access granted to mountainside to which there is no legal access. I think it is reasonable to ask the Government to look at that point and to consider whether, in what may be an interim period, it should be quite clear that no one, by whatever process, can provide access to a mountain top to which there is no legal access. It is as simple as that.
§ Lord Whitty
I said that I cannot guarantee it, but the process is there to deal with these very few particular cases. Our assessment is that with the majority of such islands there would be at some point legal access of some kind. It may not be a footpath or a road but we have the process for dealing with legal access in those remaining areas. I agree that I am not guaranteeing that to the noble Lord, but there is a process for dealing with this point.
Amendment No. 16 would have two distinct impacts. This is partly a definitional issue. Broadly speaking, I am on the side of the noble Lord, Lord Greaves, and not on the side of the noble Lord, Lord Brittan, and others who are saying that we should tighten the definition. I am in favour of some degree of flexibility for the countryside agencies. What we are trying to describe here is "open country". The terms "down", "moor", "heath" and so on are a means towards getting that definition. Turning to the point made by the noble Viscount, Lord Bledisloe, if it is cultivated land, it is excluded, whatever its geological and landscape position.
846 Amendment No. 16 would rule out any downland which the countryside bodies found to occur north of the 53rd degree of latitude—I do not have the visual aid of the map available, but that is roughly between Boston, Stoke on Trent, and Pwllheli. That is not a very rational approach. If I may divert into geology for a moment, the noble Lord, Lord Greaves is right: in our consultation process we perhaps went slightly too far in our use of the geological definition. We referred to calcareous strata, which, in my understanding of chemistry and geology, means limestone as well as chalk. That definition would exclude, for example, any downland that occurs in Wales, any occurring in the Yorkshire Dales and indeed the Yorkshire Wolds. There are dialect issues here. It would also exclude the Cotswolds south of that line because the area is limestone and not chalk. That seems far too restrictive a definition. We need to allow some flexibility to the countryside agencies, but in response to the noble Lord, Lord Greaves, it is clear that such land—access open country within the Yorkshire Dales, for example, or the Cotswolds—should indeed be covered in the definition of "open country".
Amendment No. 17 raises the question of areas that are predominantly covered by water. We do not see the amendment as particularly helpful. Paragraphs 1(b) and 1(h) already exclude the use of such water for bathing or boats from the statutory right of access. So if there is a lake in the middle of access land, there is no question of the public having any right to use the lake for any purpose. If the amendment were to be adopted, there would not be much certainty as to exactly what was excluded, and some landowners might be tempted to argue that any watercourse that fell within the scope of access land should be used to establish exclusions and, therefore, cause walkers to be confined by a stream or river on access land. That is not the intention. There are no rights over that water, but the exclusion of that area should not be used as a restriction on access land.
Amendment No. 26 is intended to ensure that only land that consists of one of the categories of moor, heath or down is mapped. But there will be areas of land that fall wholly or predominantly into more than one of those categories and in some areas it may not be easy to identify the exact boundary between moor and heath. In one sense, if it falls within both, it may not matter. I can see that Members of the Committee would like to have greater precision, but the Countryside Agency would need to define the land as land that fell in one or other of those categories. If the boundary between the two categories was a matter for dispute, that is not relevant to the conclusion that it should be mapped as open country.
As I read Amendment No. 27, it seeks to exclude downland entirely from this definition. In the south of England what is clearly understood as "downland" must be among the most prized and beautiful parts of the country which people would expect to be subject to this right of access. It forms part of one of the most loved areas for recreation in the south of England. It is one of the few categories that could be applied to land in the south of England which would be mapped as 847 open country. Therefore, the exclusion of downland would not only greatly restrict the acreage; it would also particularly disadvantage the populations of the south and south-east of England. We do not, therefore, believe that we should exclude downland.
The noble Earl, Lord Caithness, indicated that he wished to refer to his amendments separately. I hope that none of these amendments will be pursued and I hope that that explanation will, at least for now, satisfy noble Lords.
§ Lord Glentoran
I thank the Minister for his explanations. We have covered Amendment No. 13 quite well. However, I still believe that if the amendment were to be worded in the manner suggested—namely, that such land would be legally accessible to the public—that would be seriously helpful to the Bill. We shall return to the amendment in this or a similar form.
In relation to Amendment No. 16, I am still not convinced that there is not room for a more specific definition of "down". We have heard several explanations of "downland", north and south, but the definition remains subjective. It might be pleasurable, but it might also be difficult and worrying for the agency concerned and cause strife later. I believe that the tighter the Government's definitions are at this stage, even though that may be difficult, the better the Bill will be, the more easily it will be implemented, and the less room there will be for conflict, which is what my objective would be from this side of the Committee, just as I am sure it is the view of the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Baroness Farrington of Ribbleton
I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.