Report (4th Day)
124EZA: Clause 286, page 173, line 29, at end insert “or, in the case of land along the landward boundary of the route, where an agreement with all persons with a relevant interest in the land has not been entered into”
My Lords, it is appropriate to consider coastal access—or should I say exercise, as the House changes mode?
We raised this issue in Committee. I have modified the amendment slightly, but we still have very strong concerns about the way in which the coastal margin will be extended out from the route, across private land. We fully support the establishment of the coastal route and we also see the value of the second objective in Clause 286, to expand access sufficiently to allow for recreation. We have had some interesting debates and no little amusement about cliff climbing, base jumping and other intrepid sports particularly loved by the noble Lord, Lord Greaves, who I am sorry to see is not in his place today. There are many places along our coast where these recreational activities are particularly suited.
However, the primary reason for this part of the Bill is, and should remain, to enable the public to walk around our coast. The secondary objective is not of the same priority as the first, but it can add most value to the public by allowing them to enjoy the coast. The recreational strip would in the vast majority of cases be utilised between the route and the sea itself. My amendment limits the automatic establishment of coastal margin to that strip of land. As the Minister made clear in Committee, land to the landward side of the route might occasionally fall into the definition of coastal land as well, or it might have recreational uses, such as where the path goes along the bottom of a cliff, rather than the top, for example.
My amendment would therefore allow land in that situation to be designated coastal margin with the agreement of the landowner or occupier. When such agreement is not forthcoming, it might be reasonable to assume that in the huge majority of cases the land would be of more value to the landowner than to any would-be users. The Government have rested their hopes that coastal margin will be sensibly designated in the systems of consultation, and so on, that they are implementing. I hope, of course, that the system will ensure that the margin will be sensibly designated and that the Government’s later amendment will certainly help to redress any confusion as to its extent. But even where that is the case, some members of the public will still wander where they should not. An expectation of margin to the landward of the route will unavoidably increase the number of these incidents.
I hope that the Minister understands our concerns over the coastal margin and will take the same constructive attitude to address them as he has done on so many others. I beg to move.
My Lords, I congratulate the noble Lord on finding things to say while noble Lords left the usual suspects to it, but that is the extent of my congratulations on this amendment.
I speak on behalf of my noble friend Lord Greaves. I am sure that noble Lords will understand how devastated he truly is not to be fit enough to be with us this afternoon. He has put so much effort into the issue of coastal access not just in this Bill but at the pre-legislative stage and throughout the years since the Countryside and Rights of Way Act was passed. I fear that I will not do him justice on his amendments.
On this amendment, I do not regard the second objective as separate in the way that the noble Lord described it. It seems to me to be an aspect, a limb, of the single duty described at the start of the clause. It is not something that can be extracted or separated but something that must be read alongside the first objective. At first reading, I thought that this was a moderately benign amendment giving an exception but, now having read it three times, it seems to me that it would give all landward owners and others who fall into that category what amounts to a veto. As I read it, that would wreck the coastal duty. Therefore, we on these Benches cannot support the noble Lord.
My Lords, I should also say how sorry I am that the noble Lord, Lord Greaves, is not with us today. I hope that he will be able to be with us when we come to Third Reading in a week’s time.
Let me say at once that I understand the concerns of the noble Lord, Lord Taylor, which he raised in Committee. I very recently met the Country Land and Business Association; I have met it several times during the months for which we have been debating the Bill. Of course I want the development of the coastal path to be done in as consensual a way as possible. That means listening very hard to the concerns that landowners may have and trying to deal with them in as sensitive a way as possible. Later, we have a series of government amendments sought by the noble Lord, Lord Taylor, on landowners’ ability to seek reviews of proposals being made by Natural England. I reassure noble Lords that suitable safeguards are in place and that the Government do not intend unnecessarily to include land in the margin.
Our vision is for access to coastal land as a whole. It is to allow people access to their coastline so that they can play and explore and gain a deeper understanding of the wealth of our coastal environment. Realising that vision needs a route around the whole of the English coast that is accessible by members of the public for recreational journeys on foot and a margin of land accessible to the public for the purposes of its enjoyment by them in conjunction with that route or otherwise.
If I may, I shall give examples where the provision for margin may be of benefit. There may be places where the best position for the route is through a dune system. Agreeing to the amendment, however, would mean that although dunes to the seaward of the route were included in the right of access, those to the landward would not be. That would be confusing for users, which is not what we are aiming to achieve. Equally, to make the boundary of the margin clearer to users, it may be drawn to a physical feature such as a field edge or wall that is landward of the line of the route. We want the route and the boundary of the wider margin to be in the most sensible position, taking all circumstances into account, and for the right of access to be consistent and clear on the ground.
We have listened to concerns expressed in previous debates about the description of the margin, and we will discuss later Amendment 124K, requiring Natural England to include in its coastal access report a map showing the landward boundary of the relevant coastal land where Natural England is unable to provide a description of the boundary sufficient to identify the relevant coastal margin.
A number of safeguards are built into the Bill to avoid adverse impact on property and business, including consultation of landowners in deciding the line of the route and any conditions or restrictions on access—for example, for land management purposes. Certain land types will also be excepted from the right of access—for example, buildings and their curtilage. Once access is in place, I recognise that my department and Natural England will want to work with stakeholders on the best ways to promote safe, considerate and responsible behaviour by users of the coastal route and the wider margin.
In conclusion, we think that we need this flexibility to allow there to be a margin in the way that I have described. I agree with the noble Baroness, Lady Hamwee, that to accept the amendment moved by the noble Lord, Lord Taylor, would inhibit that by giving a veto to landowners. We think that that does not support the careful balance that we have sought to achieve in the Bill. It also has to be seen in the context of the later government amendments in relation to the landowner’s rights of representation.
My Lords, I thank the Minister for that response and for all the discussions he has had with interested Members of your Lordships' House and with interest groups. He will know that they are particularly concerned about this issue, and I remain concerned. I do not doubt his sincerity in seeking to bring about a consensual approach to the route, and I hope he will accept my sincerity in believing that this is one of the obstacles to consensus. It makes it more difficult for landowners to accept with equanimity that they own land that will be designated as public access because of fears about where the coastal margin to landward might end up, as opposed to the line of the route. I regret to say that I feel that I must force the issue; I wish to test the opinion of the House.
124EA: Clause 286, page 174, line 12, at end insert—
“(7A) Natural England and the Secretary of State must endeavour to achieve the objectives of the coastal access duty within ten years of the commencement of this Part.”
My Lords, before I speak to the amendment, this is an appropriate point at which to pass on the thanks of my noble friend Lord Greaves, who has sent this message to me through the wonders of modern technology. I received it after we had started this afternoon’s sitting. Courtesy should have suggested it to me without the prompt, but my noble friend particularly wants to thank the Ministers and the Bill team, on behalf of Members on these Benches, for, as he says, the huge amount of time and effort taken in briefings, discussions, understanding and negotiations on Part 9, and the huge amount of material that they and Natural England have been able to produce while the Bill is still in the Lords. In the message, he ended that sentence with a question mark: I am not sure whether he intended to add any particular implication—I think not.
Amendment 124EA, which essentially amounts to “let’s get on with it and do it within 10 years”, was debated in Committee. I understand that the Government and Natural England say that this is their aim. My noble friend retabled the amendment for the obvious reason that it is not party political in current terms. Frequently, when there is a reference to the Secretary of State taking a view or making regulations, one has to think about the situation were there to be a different Secretary of State. We would be concerned should there be a Secretary of State who was not so enthusiastic about the provisions of Part 9.
In Committee, the Minister said that he was,
“entirely sympathetic to the point about the 10-year time limit”,
which is encompassed in this amendment. He added:
“However, we are a little reluctant to put it in the Bill”.
The reluctance was that Natural England should,
“give a great deal of thought to”,
the arrangements and the approach that it should take. He continued:
“I hope he will accept that Governments always resist timetables, and we will resist this one. I do not want him to think that by doing so we are not committed to the work being undertaken within that period. I hope I have convinced him that, like your Lordships, the Government believe that we should embark on this duty with enthusiasm”.—[Official Report, 30/3/09; col. 887-88.]
However, we would be much more convinced if the Bill said so. Of course, we do not doubt the Government’s intentions, but there may be a Government who are less enthusiastic about this part of the Bill. I believe that we are not asking for something unreasonable. Ten years is a long period. I accept that it is a big job, but we are not asking for something to be accomplished overnight. This seems to be a reasonable amendment and everyone accepts its intention. I beg to move.
My Lords, like the noble Baroness, I am sure that all noble Lords look forward to the completion of the route. The letter that the Minister sent out last week on this matter was particularly helpful and I hope that Natural England finds it possible to meet its expected timetable of 10 years. Meanwhile, I hope that the Minister will confirm that stretches of the route will be opened as soon as their designation is possible.
My Lords, I am grateful to both noble Lords who have spoken and I regret that the noble Lord, Lord Greaves, is not with us today. No doubt, by the time I have sat down, the noble Baroness, Lady Hamwee, will have received a message from him saying how much he appreciates this sentiment from this quarter. In Committee, my noble friend Lord Hunt emphasised the importance that the Government attach to fulfilling their coastal access duty and to seeing that the coastal route is created within 10 years. Natural England has estimated that development and implementation of the coastal access corridor will take that length of time. This implementation period is based on the experience of Natural England and its predecessors in delivering public access provision. Natural England is already involved in preparatory work so that when the Bill obtains Royal Assent it will be able to move forward without undue delay.
Natural England has published a draft of the scheme and has been working with local authorities to carry out an audit of existing access provision along the coastline. Field testing is being carried out in Cumbria to test how to carry out the first stage of implementation covering the collection and analysis of relevant information about that stretch of the coast. In Dorset and Northumberland, testing is taking place with National Trust tenants on how to undertake the second stage of implementation, which will include discussing with owners and managers of the land possible options for the coastal route. In the Humber estuary, testing is being conducted in liaison with the Environment Agency on the practical applications of its proposed work on estuaries. Further, testing is being carried out at three of Natural England’s national nature reserves on practical issues on the use of its data capture processes, including issues such as managing wildlife sensitivities, visitor safety management, site interpretation and managing access across land ownership boundaries. Natural England is of course fully committed to this project and is working to make it a reality within 10 years. The illustrations I have given indicate the seriousness with which early preparations are being made.
We are in line with the principle behind the amendment and the timetable it sets out, but we do not support it. While we understand the concerns of the noble Baroness, the Bill does not set a timetable for implementation of the coastal access duty for very good reasons. The implementation timetable must be flexible to match progress and allow time to be taken where it is required in order to find the best and most appropriate solution. This is a major and expensive project for Natural England, which has budgeted £50 million for it over the coming 10 years. That is a not inconsiderable sum and one which, after careful budgeting and review, we think is adequate to carry out this important project. But if we were tied by the Bill to a timetable of 10 years, there would be pressure to throw even more resources at the project while probably not making the best and most prudent use of the funding available. That is not something we want to see occur.
For these reasons, we do not think it appropriate for a time limit to be set in legislation. We will monitor the progress of implementation, and in line with the recommendation of the EFRA committee we have given an undertaking that Natural England will report on its progress to Parliament, thus giving an opportunity for noble Lords and Members of the other place to monitor progress. I hope I have outlined our clear intention to deliver this important and quite costly project over a 10-year period, but I want to emphasise the real danger of putting a timetable into the legislation. It would introduce inflexibility into such an important project. However, I also emphasise to the noble Lord, Lord Taylor, that once the full process of representation and consultation is completed, we will want to see stretches of coastline being opened up as soon as possible. The Secretary of State would make a determination on the report and once the right of access can commence, implementation works when completed will guarantee progress.
Noble Lords will recall that a great deal of our coast is already accessible and therefore we are in a sense completing a jigsaw for which several substantial pieces are already in place. Enabling Natural England to approach this in a piecemeal way by giving effect to decisions which can be readily arrived at is the way to do it; it will maximise access as soon as possible along as much of the coast as possible. We entirely subscribe to the viewpoint expressed by the noble Lord in his contribution but we are against putting in the Bill the 10-year timetable, which has an arbitrary dimension to it. I hope the noble Baroness will recognise the Government’s serious intent to deliver as soon as possible and that she will feel able to withdraw the amendment.
My Lords, I recognise the serious intent and the size of the budget; I hope that the budget survives at that scale. The amendment was not intended to tie the Government in quite the way described by the noble Lord. The wording is:
“Natural England and the Secretary of State must endeavour to achieve the objectives”.
However, it would not do our cause on this issue any good to be defeated on the amendment. I therefore beg leave to withdraw it.
Amendment 124EA withdrawn.
Clause 287 : General provision about the coastal access duty
124F: Clause 287, page 174, line 46, at end insert “, and
(d) the presentation of all existing rights of access to the foreshore.”
My Lords, the amendment is grouped with three others in my name and two government amendments. I propose to speak, quite briefly, to all of them.
I should first correct what appears to be a typing error that has crept into Amendment 124F from the previous occasion when it was tabled in Committee. It should read not,
“the presentation of all existing rights of access to the foreshore”,
but “the preservation” of all existing rights. I hope that it now makes more sense.
I thank those noble Lords who at the Committee stage gave support and encouragement to the amendment, the purpose of which is simply to place on the face of the Bill the fact that nothing that we are doing in it removes any existing rights of access to others. The concern that was expressed in Committee came particularly, but not exclusively, from cyclists and people who ride on the existing bridleways and on the foreshore. I am grateful to my noble friend Lord Hunt for the discussions with him and his officials, which have been extremely helpful. For my part, I am content that government Amendment 124T, which is grouped with this one, meets the bill as it places clearly in the Bill the requirement that I was hoping to see. In due course I shall take a step that will mean that the typing error does not matter.
The second, separate, issue, which arises in Amendments 124G to 124J, has been slightly less productive of a compromise. Your Lordships may remember that this matter was raised in Committee; it relates to the rollback of paths when either there is erosion and the existing path goes or there has for some reason to be a diversion. The rollback under this provision will be a rollback of the footpath but not of the bridleway. So, in effect, whether it is erosion or a diversion, the end result is the loss of a section of bridleway—a loss of access rather than a gain.
I am told—no doubt the Minister will explain the reasons—that it is not the Government’s intention to amend the Highways Act in this legislation. That is the reason why they say that it is not possible to do what the amendments seek to do. I appreciate that there are additional difficulties and, although I am sad about it, I accept the Government’s decision that we should not amend that Act in this Bill. Therefore, I shall not in due course press the amendments.
However, I feel it right to say that this is the second piece of major, time-consuming legislation relating to access that has come before this House in the past 10 years. We have, effectively, not increased access for cyclists and riders on our network in those two pieces of legislation. There has been powerful lobbying from those who walk—of course, there are many more of them—but we should not lose sight of the fact that our roads are increasingly dangerous, particularly for equestrians. There are increasing numbers of accidents and more traffic altogether. Not only is it in everyone’s interests with regard to safety to try to get riders and cross-country cyclists off the roads and on to paths, but in many cases that also provides a real increase in income due to tourism. I am sad that it has not been possible in either piece of legislation to provide a full, comprehensive, modern network of paths on which people can ride and cycle in safety.
I hope that the Minister will give us some encouragement that the Government, even if they are not going to deal with it in the Bill, will look at this issue in other ways. I am told by the national park authority where I live part of the time, down on Exmoor, that with a small amount of money it would be possible to increase considerably the number of bridle paths and with that, no doubt, the number of people coming to stay and ride over the moor. I hope that there will be ways in which something of that sort can be done. I beg to move.
My Lords, I think that we are all pleased that the noble Baroness, Lady Mallalieu, has a more propitious slot for her amendment; it was after 10 pm the last time we discussed this topic. I am pleased that the Government have found it possible to address her concerns about the loss of current rights of access. Like her, we support the Minister’s amendments in this group.
My Lords, I thank the noble Baroness, Lady Mallalieu, for bringing her amendments back. I apologise that I was not able to put my name to them—I did not think that I would be here in time—but I am gratified that the Government are moving Amendment 124T, which will help in some small way. I accept that within this current legislation it is not possible for the Government to accept the thrust behind Amendments 124G to 124J, but can the Minister give us any indication of when that might happen? That might help people who have been carefully following these discussions. I am not a horse rider any longer but I have been. The noble Baroness is right to underline the difficulties that there are for people riding horses on roads—there are too many accidents—and it will be a shame if the Bill curtails some of the access that they would otherwise have had. I support her amendments.
My Lords, I thank my noble friend for tabling these amendments and for the discussions that I have had with her since Committee. I am grateful for the welcome that she has given to the Government’s amendments. I reiterate what my noble friend Lord Davies said in Committee: we want to encourage people to enjoy the countryside and we see this as providing access to the countryside for horses and riders. However, I understand the concerns that are being expressed, by horse riders in particular, that new rights of access for walkers could be detrimental to their existing rights. That is why I am bringing forward the government amendments.
I shall deal with the other amendments in my noble friend’s group, Amendments 124G, 124H and 124J. They would require Natural England to provide for the route to be treated as a public right of way where Natural England proposes that the route should be determined, in accordance with the proposals, where the coast is subject to erosion. The provisions in the Bill have been designed to be flexible so that, where a coastline is eroding due to encroachment by the sea, Natural England may describe the route by distance from a cliff or field edge, for example, so that the route would move inland as the cliff eroded and continuity would be maintained. This is described as “rollback”, which we discussed in Committee.
The coastal route may follow a right of way where it is appropriate to do so. Where this is the case, the right of access along the route is the right of access that pertains to the right of way. If it is a bridleway, the existing rights of horse riders and cyclists will not be affected. However, the provisions in the Bill that enable a route to roll back do not enable a right of way to roll back with it. I have discussed this point with my noble friend. The Bill does not affect legislation pertaining to rights of way; as my noble friend said, that is beyond its scope. The right of access on the route after it has rolled back will be the right of access that generally applies on the coastal margin—that is, the right of access provided by the Countryside and Rights of Way Act 2000.
We have considered my noble friend’s concern that there should be absolute clarity that existing rights are not affected by any new right. That is why I am tabling Amendments 124T and 126AA. Amendment 124T extends Section 20 of the CROW Act, which deals with a code of conduct and other steps that Natural England must take to inform the public and persons interested in access land of the extent of, and means of access to, access land, and of the respective rights and obligations in relation to that land. Natural England will be required to ensure that, in relation to land on the coastal margin, the public are informed that the legal position is that the right of access conferred by the CROW Act does not affect any other right of access that may exist in relation to that land. It also makes it clear that a separate code of conduct may be drawn up for coastal land.
In view of the concerns raised by the noble Baroness, we spoke to the national parks authorities to ensure that they understand the legal position and we have received assurances from them that they will work with the horse-riding community to facilitate access. My noble friend was particularly encouraging when she talked about the discussions with her local national park. We need to build on that to ensure that national parks authorities understand the law and that the passing of the Act is not seen as inhibiting people from riding horses where it is appropriate for them to do so.
I know that there has been disappointment that, when rollback takes place, it will not be possible to roll back a right of way. Rights of way legislation is highly complex. It involves the obligation for a highways authority to keep a record of all public rights of way on a definitive map. Changes to the map must be made by order, involving a long process of advertising and public inquiries. Compensation may be paid to landowners for losses as a result of the imposition of a public right of way.
Our view, on which I have been strongly advised, is that highway legislation does not lend itself to the concept of rollback. When a right of way is lost through erosion, it can be revived only by creating a new one. That is the problem that we face. It is for that reason that I am disappointing my noble friend. However, I hope that I can give sufficient assurance to her and to the House—and I am satisfied from the discussions that my officials have had with Natural England that it shares this view—that we see horses and horse riders, where appropriate, as contributing to the environmental gains brought about by the coastal access path. Although I have disappointed my noble friend on her second group of amendments, I hope at least that she will feel that the Government are sympathetic to her general aims.
Amendment 124F withdrawn.
124EZB: Clause 286, page 174, line 1, at beginning insert “so far as is reasonably practicable without compromising the objectives of the coastal access duty,”
My Lords, I apologise for the error in the reference; I am not quite sure how that came about. We may all be familiar with the concept of a fair balance generally, but I do not know that it has been used as a term in legislation before. There is real concern, notably on the part of the Ramblers’ Association and the British Mountaineering Council, that “a fair balance” might mean splitting the difference. There will always be a reason for landowners to appeal proposals—I shall return to that in a moment.
My noble friend Lord Greaves’ amendment would add to Clause 287(3) the requirement that the Secretary of State and Natural England must aim to strike a fair balance,
“so far as is reasonably practicable without compromising the objectives of the coastal access duty”.
In doing so, he is seeking to put the fair balance concept into the context of the coastal access duty and the coastal access scheme. If one were not to do so, and to see something as being fair but separate from the coastal access duty and scheme, there might be a rather different outcome.
Perhaps the Minister will tell me that the new schedule on coastal access reports—to which it is clear we shall all soon agree, and which defines “fair balance” in the same terms as the clause—means that my concerns are unfounded. I do not see a direct connection between the clause and the schedule. While the amendment may not be required because of the purpose of the schedule, I note that the schedule requires the person appointed to make the determination to consider whether the proposals do not fail to strike a fair balance. I am a little concerned that the language around this is slightly fuzzy. It is important that there is consistency and clarity in the aim of the coastal access duty. I beg to move.
My Lords, I am delighted that we have cleared up the error in the Marshalled List. The amendment as written in the Marshalled List seemed to make little or no sense, so it is good that we are all looking at the correct page in the Bill.
The noble Baroness, Lady Hamwee, will not be surprised to hear that we do not support the amendment. If there is to be any derogation from the fair balance, we would rather see it fall to the benefit of those with the relevant interest in the land. While we fully support the expansion of public access, it should not override a person’s right to the enjoyment of their property. It is unavoidable that there will be a few breaks in the route and several diversions away from the coast. I hope that Natural England will work hard to keep them to a minimum. This amendment seems to put the objective of coastal access above all—or most—other considerations, whereas the Bill aims to strike a fair balance between the interests of the public in having rights of access over land and the interests of any person with a relevant interest in the land. We prefer the wording as it stands in the Bill.
My Lords, I am grateful to both noble Lords—to the noble Earl, Lord Cathcart, who has expressed an important point in defending the wording of the Bill and who will not be too surprised that I share that view, and to the noble Baroness, who assayed a guess about what I might be likely to say, that the Bill provides this balance. That is exactly what I am going to say. I am involved in the exercise of reiteration.
I accept entirely the noble Baroness’s point that the concept of fair balance must be at the heart of the legislation. We wanted that concept to be enshrined within the coastal access duty; it involves weighing up the different interests of landowners and the public and coming to a fair division in the light of what are obviously foreseeable competing interests. The Bill makes the requirement without the addition of this wording, which as the noble Earl said might be interpreted as loading the issue one way. The Bill strikes a proper balance—namely, that it is the duty of the Secretary of State and Natural England to strike a fair balance, which is absolutely integral to the coastal access duty. That is why I would contend that the Bill gives effect to precisely that objective and has it running as its crucial principle. That balance has to be struck as regards any particular piece of land; after all, the route has to go somewhere, and these decisions have to be taken in the light of particular pieces of land.
The considerations that the Secretary of State and Natural England will have will be to balance all the options between differing landowner interests and those of the public. It is the intention that Natural England and the Secretary of State should do everything practicable to achieve a fair balance. The current wording of the Bill is a strong inducement for them to achieve that. We would hope and expect that the consensus at the heart of the duty will be achieved in most cases. The Bill expresses things as a proper balance in those terms.
I am grateful for the noble Earl’s support. I hope that the noble Baroness will feel that, having explored this issue further, the Government are at one with her as regards the principle and intent. We believe that the Bill expresses that and hope that she will feel able to withdraw her amendment.
My Lords, will the Minister clarify an issue for me? When in the south-west, for example, a coastline route is already agreed, I presume that it is not within the Government’s thinking that they will alter that route, unless it is due to erosion, and that the existing lines to which the public have access will not be changed. Would it be possible that access for an island site, for example, which does not have access across it now but has access agreed behind it, might be open for negotiation again? I am not quite sure from his response exactly where we are on that issue.
My Lords, my response to the noble Baroness is to say, as I think I did in speaking to an earlier amendment, that we want to build on what is already there. Access to the coast already exists in a substantial part of the country. In some parts it does not meet the Bill’s criteria, which is why work will need to be done there, and some parts of the coast are not accessible, which is what the Bill concerns itself with. She mentioned the coastal path in the south-west of England. When a path is working well and no factors intrude to necessitate changing the arrangements, Natural England’s priority will not be to address that area, and we would not expect it to. As a result of its studies and preliminary work it is well aware of the need to look at the parts of the coast that require full examination because access is currently limited.
What we cannot rule out entirely is the need for Natural England to address itself at some stage to problems that occur even in the best-established circumstances. As the noble Baroness indicated, erosion—which is perhaps less pronounced in Cornwall than elsewhere on England’s coast—will change positions that would otherwise be satisfactory, because the natural conditions have changed.
I want to assure the noble Baroness that Natural England will have its work cut out in addressing itself to those parts where there is currently no access or where obtainable access falls a very long way short of the concept of the coastal path as defined in the Bill. I would surmise that it will not be interfering with the coastal path in the south-west of England for a considerable time unless great concern is expressed about a natural feature that changes the situation of the path to make it less attractive and less passable than it is now.
My Lords, the amendment is about a fair balance. The imbalance is in the consultation, as Natural England will have to consider representations from persons with a relevant interest but not to consult bodies representing user groups and the public. That is why this is particularly important. The imbalance is not corrected in the new schedule, or at least it is not without reaching the point having a public inquiry.
We have thrashed this out as much as we are going to. After reading the whole Bill with the new schedule, colleagues in the Commons might wish to re-rehearse some of the arguments. At this stage, I beg leave to withdraw the amendment.
Amendment 124EZB withdrawn.
124FZA: Clause 287, page 175, line 3, at end insert—
“( ) In aiming to strike a fair balance under subsection (3), Natural England and the Secretary of State must have regard to any benefit accruing to any person with a relevant interest in the land from the expectation of privacy.”
My Lords, my amendments in this group seek to add to the Bill the specific consideration of the loss of privacy that the establishment of this route and coastal margin will mean.
My first amendment would add a special consideration for where a person with a relevant interest in land is making a livelihood from the expectation of privacy. Whether this is renting out an exclusive beachfront property to the rich and famous or providing a cliff-top wedding location, or the more prosaic question of whether it is a good idea to have members of the public wandering through a caravan park, there are many ways that a businessman needs to be able to guarantee privacy in order to sell a service.
My second amendment addresses my concern that the Government will use the order-making power in Clause 293 to radically affect the list of excepted land that was established in Schedule 1 to the CROW Act. It would prevent any land where there is an expectation of privacy being designated as land over which to allow access.
In particular, the amendment would address concerns about the Government’s intention to disapply the CROW Act restriction that land within 20 metres of a dwelling must be excepted land. I take the Minister’s point that 20 metres is often an arbitrary distance, but I believe that it is also near enough the length of a chain or a cricket pitch. So I can see not only the arbitrariness of 20 metres but also its importance. Rights of way often pass within this distance and there should be proper consideration of the fact that allowing access right up to a house, even where the land is not part of their garden, could severely compromise a reasonable expectation of privacy. Can the Minister reassure me that definitions of “excepted land” will not be dismissed without due regard to this expectation? I beg to move.
My Lords, I will not repeat what my noble friend has so clearly said, but the issue has been raised with me on several occasions. One such provision in particular, if it were so moved, would affect a wildlife sanctuary, which is clearly undesirable. I hope that the Minister will be able to give assurances to my noble friend. I know that we are not in Committee, so we cannot come back again, but I formally support this important amendment.
My Lords, when the noble Lord, Lord Taylor of Holbeach, was talking about the need to think in commercial terms about privacy in coastal spots, I was thinking very clearly of nudist camps on the south coast, but I suspect that he is not talking about that on this occasion. We on these Benches and the Conservatives have some fundamentally different approaches to rights to privacy and access. I was almost humming “The Land” song—
“God gave the land to the people”—
as I went into the Lobby on the last occasion.
As noble Lords know, we believe that public access is important here and that rights of access to the coast and the beautiful views that one gets from the coast should override the rights of privacy beyond a certain point. We are therefore opposed to strengthening the rights of landowners here. Given the difference between the coast and the landscape in general, it is not proper to put in the same sort of rights here as we have in other clauses. We are not willing to support the Conservative amendment, and I very much look forward to seeing some of the beautiful views which the noble Lord, Lord Taylor of Holbeach, would prefer to retain for those who are privileged enough to have bought for very large amounts of money the foreshores in Poole, parts of Dorset and Devon, and elsewhere.
My Lords, I am grateful to noble Lords who have spoken on these amendments, particularly the noble Lord, Lord Taylor, for setting out so clearly the concerns that some may have about the possible location of the coastal route and its impact on privacy. We understand those concerns and contend that we successfully address them in this legislation.
As the noble Lord indicated, his first amendment would ensure that the expectation of privacy is considered as part of the fair balance between the public and personal relevant interests in the land. Of course the privacy of the landowner will be part of the consideration of the relevant interests of any person in the land, which will be taken into account alongside other relevant considerations. The noble Lord is right to emphasise it, but it is part of the landowner’s interests. The flexible way in which the legislation is intended to work, alongside the duty on the Secretary of State and Natural England to strike a fair balance between those with an interest in the land and the interests of the public, plus the provisions for certain categories of land such as buildings and their curtilage to be excepted from the right of access, will, we contend, enable Natural England to avoid locating the route where there could be an adverse impact on business or property. I understand the point that the noble Lord, Lord Taylor, made—that privacy is part of the ownership rights of the landowner, which he identified as a category.
Natural England has made it clear in section 9.9.2 of its draft scheme that where the route goes to the landward of a holiday cottage, any buildings and their curtilage, including gardens, which are excepted land, will not become spreading room, even where this prevents the public reaching adjacent cliffs and beaches. I draw attention to the fact that later today we will consider government Amendment 124U, which includes an objection procedure that will enable a person with a relevant interest—along the lines indicated by the noble Lord, Lord Taylor—who wishes to seek a modification or make an objection to Natural England’s proposals for the route to put this forward to an appointed person for consideration. We will discuss that amendment later, but I refer to it now because it is an important aspect of privacy rights and the rights of the landowner. Therefore, I do not consider that it is necessary to include the proposals set out in Amendment 124FZA, as I maintain that we have taken into account the interests of the landowner and have allowed for objections to be made where that is appropriate.
Amendment 124SA seeks to ensure that where land is excepted land and there is an expectation of privacy on that land it will not be excluded from the description of excepted land. We have said that we intend to amend the categories of excepted land in the CROW Act so that land within 20 metres of a dwelling and land within 20 metres of a building which is used for housing livestock, not being a temporary or movable structure, is not excepted land for the purpose of coastal access land. These are categories of land that we do not consider appropriate to except in the context of the coast where, unlike the extensive areas of mountain, moor, heath, down and registered common land under CROW, access will be limited to a margin of land next to the sea.
In addition, Natural England will use existing access, for example existing rights of way, where it is appropriate to do so. As we hinted earlier, many rights of way could enable coastal access. There are many examples of existing public rights of way that run closer to buildings than 20 metres. Other exceptions, particularly the exception for curtilage, will have the effect of protecting the privacy of residents. We have indicated in a paper setting out the main measures that the Government expect to include in an order under Section 3A of the CROW Act that we intend to consult on the appropriate treatment of camp and caravan sites with their owners in so far as it may prove necessary to provide a route through them. I am not surprised that the noble Lord, Lord Taylor, raised this challenging issue regarding access to the coastal path. It will be appreciated that in some cases this measure will be necessary, as these areas can be very extensive. We will have to strike agreements with private owners in these cases, but I make it clear that that will be done on the basis of consultation. I emphasise that any such order will be an affirmative resolution order and will therefore need to be debated and passed by both Houses before implementation.
Where there is development at the coast, Natural England will seek to position the route to the seaward or may in some circumstances, of course, go inland around the development. Where there are caravan sites or campsites, the best position for the route will often be along the seaward edge, but we are proposing that the route may pass through a site if this is the best, or perhaps even the only real, alternative. This would simply involve a route through; it would not include the concept of spreading room. That would not be created on land occupied by a formal camp or caravan site; only the coastal path would be the subject of negotiation, consultation and decision—not the spreading area—when the path went through private property of this kind.
As elsewhere, Natural England will consult the site operator on the best means of achieving continuity of access along the coast—which is the most desirable option—and the route will be chosen to balance business interests with public interests. Natural England will also be able to place restrictions on the use of such access, if that proves to be necessary in certain circumstances. So I hope that the noble Lord, Lord Taylor, will accept that we understand the motivation behind the amendment, and that we are addressing this in particular and considerate terms so that there can be a balance between what is often quite an extensive area of a caravan site or a formal campsite and preserving the concept of the coastal path.
I hope that the noble Lord will accept the reassurances on that front and that, on his first amendment, as I have indicated, we recognise the concept of privacy as being part of the interest of the landowner. However, at times there will be marginal and difficult decisions, and later this evening we will propose an amendment which gives rights to the landowner to challenge any position that Natural England establishes. I hope that the noble Lord is sufficiently reassured to be able to withdraw his amendment.
My Lords, before my noble friend does that, perhaps I can ask the Minister a question. He explained quite rightly that this matter will go out to consultation. However, if for any reason that consultation comes down against the person regarding his land or a business operating on it, no compensation at all is provided for in the Bill as it stands. I may have missed it, but there should be something if there is to be a loss of income as a result of a decision, even if the matter has gone to consultation and even if the decision may go against the individual.
My Lords, the noble Baroness raises an issue which I had not thought was in the context of these amendments. We have of course considered these points previously. It is important that we establish the important ground rules of fairness between the interests of the landowner or any business and Natural England’s proposals on the coastal path. It is clear that the concept of fairness will minimise any adverse impacts on the landowner’s interests. However, the Bill is not drawn up on the premise of compensation on these issues, and the noble Baroness will know that we had some fairly substantial discussion about this during previous stages of the Bill. I have nothing further to add to that at this point.
My Lords, this has been a useful debate, and I thank the Minister for his response. It has brought us round to the importance of privacy as a factor in people’s lives. It is not just the interests of landowners that are being addressed by these amendments, but those of the people who use these assets for their enjoyment and leisure, such as people on holiday. I gave a few examples which help to put privacy in context. It is a privilege, to which people are entitled in normal circumstances. If the noble Lord, Lord Wallace of Saltaire, had been involved earlier in these debates, he would know that these Benches do not seek to do other than welcome coastal access. We are talking about the mechanisms to bring about such access, and to achieve the ends with a minimum sense of grievance on the part of the people who are being asked to surrender rights that they believe they have. We are legislating to give the general public access to their property, so it is reasonable to set up mechanisms that take their rights properly into account.
I was disappointed by the Minister’s response to my second amendment because the Government are taking significant powers on themselves with the proposed 3A order to amend safeguards that people have worked hard to keep. Amendment 124SA is necessary to preserve those safeguards and to ensure that the power is not used inappropriately. I warn the House that I am likely to return to Amendment 124SA when we come to the appropriate point in our debates. In the mean time, I beg leave to withdraw the amendment.
Amendment 124FZA withdrawn.
124FZB: Clause 287, page 175, line 4, leave out subsection (4) and insert—
“(4) References to a person having a relevant interest in land shall have the same meaning as that in section 45 of the CROW Act (interpretation of Part 1).”
My Lords, my amendments in this group return to an issue which I raised in Committee—the question of what is considered a relevant interest in land. The Minister stated his view that the CROW Act definition, which is wider than the definition used here, is more appropriate on the grounds that coastal land does not give rise to the sort of rights, particularly sporting rights, to the same extent as the land that was being made accessible in the CROW Act.
However, a government e-mail to the Countryside Alliance on this point noted that coastal land involves many other rights which may be affected by the route and associated margin. The Government therefore seem to be defending their new definition with two contradictory points. Either the wider definition of relevant interest has been rejected because the rights are not relevant to coastal land, as the Minister said in Committee, or it has been rejected because it will include too many people in the review process, as the Defra e-mail suggests. I would welcome some clarity on the Government’s thinking. Surely the point should be one of principle, not just numerical weight. If a right will be affected by the new route and margin, why is it being denied the role that was considered appropriate under the CROW Act? I beg to move.
My Lords, I am grateful to the noble Lord for again raising this matter, on which I have had discussions with outside groups between Committee and Report. We believe that some interests should have a further right to be consulted, to make full representations to the Secretary of State and to benefit from the objections procedure set out in my Amendment 124U, which we shall discuss soon.
We think that the coast raises different issues from those raised by the open country under the CROW Act. There are different land types, and interests at the coast must be considered. Land mapped as access land under CROW included a number of grouse moors that made shooting interests particularly pertinent to the legislation, while rights of common were particularly important, as areas of registered common land were mapped. These were two specific interests that could easily be identified as being particularly relevant to the mapping process.
However, with coastal land, many more interests, both access and landed interests, are potentially affected by Natural England’s proposals. We identified and set out in the Bill the people whom we believe it is appropriate to include within the definition of those with a relevant interest in affected land. That is set out in Clause 287(4) and in new Section 55J(2) under Clause 292: the owner of the land, a leaseholder and a person in lawful occupation of the land. Of course we expect all those interests to be taken into account when Natural England draws up proposals for the coastal route and margin. The Bill provides for extensive preliminary work and consultation before Natural England draws up proposals.
Natural England will seek to involve local authorities fully. Indeed, my Amendment 124FC, which, again, we will discuss later, will require Natural England to do that wherever the local authority is willing and able to undertake the work. The local authority will have an in-depth knowledge of local interests, such as shooting interests, and will be able to advise Natural England on the proper persons who should be consulted. Natural England has also said that it will draw up draft proposals, which will include information on any exclusions and restrictions that it considers necessary. It will advertise its proposals and ask for comments. That is set out in its draft scheme. That will provide the opportunity for anyone to make his views known and for them to be taken into account by Natural England.
There are also safeguards for those with other interests, should they feel that Natural England has not taken into account their views adequately. They can make representations, which Natural England must summarise. Natural England must then send the summary with its comments to the Secretary of State. The Secretary of State must consider that information in reaching his determination on any proposal in Natural England’s coastal access report. Of course, he will take particular note of representations made by anyone with the sort of important and valuable interests that I know lie behind the noble Lord’s concern and are the reason why he is moving the amendment.
As a final safeguard, those with relevant interests as defined by Section 45 of the CROW Act will have the same rights as they do for open country to apply for restrictions and exclusions of access for land management reasons. That can include, for example, management for shooting or the holding of commercial events. They can apply to exclude access from the land for either a short or a longer period, subject to review every five years. Alternatively, they can apply to restrict access, for instance by preventing people from picnicking on the land or asking them to keep to a particular route. Natural England must issue a restriction or exclusion direction if it is necessary and access cannot be suitably managed in any other way. If the application is turned down or a direction proposed by Natural England is not in accordance with the terms of the application, there is a right of appeal to the Planning Inspectorate under Section 30 of CROW.
The relevant authority guidance issued by Natural England sets out how it will determine applications from land managers on open access land. Natural England will be looking to issue further guidance on any land management restrictions specifically relevant to coastal land.
In essence, we have to get the balance right. Clearly, given the amendment that I shall move later, which the noble Lord supports, we have listened carefully on the issue of landowner and other interests having the right of review. We think that we have drawn the line about right. We think that the other mechanisms in the Bill and under CROW will be sufficient to allow people who have shooting rights, for instance, to make their views known and to have them properly taken into account. I hope that the noble Lord will recognise that I have listened carefully to the representations made. I understand them, but I think that we have the balance right.
My Lords, I thank the Minister for his response. This useful debate has given him the opportunity to explain the Government’s position and I hope that it has reassured people, not only those with landowner’s rights, but also those with other rights in the land, that the way in which the legislation has been constructed takes account of their interests in that land. We will come on to debate the substantial Amendment 124U, to which I have added my name and which we are trailing by these amendments, but, given the Minister’s reassurances, I beg leave to withdraw the amendment.
Amendment 124FZB withdrawn.
Clause 288 : The coastal access scheme
124FA: Clause 288, page 175, line 21, at end insert—
“(4A) A scheme approved under this section (and any revised scheme) must set out the approach Natural England will take when deciding, for the purposes of section 55A(2B) of the 1949 Act, whether it would be appropriate for an access authority to carry out any preliminary activity (within the meaning of section 55A(2A) of that Act).”
My Lords, I shall speak also to Amendment 124FC. These amendments concern the role of local authorities in our vision to improve access to the English coast. Noble Lords will appreciate the extensive debate that we had about these issues in Committee; we tabled these two amendments following the discussions about the importance of involving local authorities in developing the proposals for coastal access in their areas that will be contained in Natural England’s report. As my noble friend Lord Hunt said during those discussions, the Government’s intention has always been to involve local authorities, which we see as extremely important partners in the coastal access project. Where they are willing to act, they will be fully involved in the implementation of the proposals and establishment of the route itself.
Amendment 124FA requires Natural England to set out in its scheme, and any revised scheme, under Clause 288 the approach that it will take when deciding whether it would be appropriate for an access authority to carry out any preliminary activity. Amendment 124FC inserts into Clause 292 a definition of “preliminary activity”, which is any activity that Natural England considers will facilitate the preparation of a report under Section 51 of the 1949 Act pursuant to the coastal access duty. The sort of activities that we have in mind are advising Natural England on the best line for the route, potential alternative routes and any necessary infrastructure and identifying those with a relevant interest who will potentially be affected by the proposals. The amendment requires Natural England to consider whether it would be appropriate for the access authority, which is defined in the Countryside and Rights of Way Act 2000 as the local highway authority or the national park authority in a national park, to carry out any preliminary activity and, if so, to take all reasonable steps to enter into an agreement with the access authority. It also gives access authorities powers to enter into such agreements in relation to their area.
These amendments formalise the approach that the Government intend should be taken and that Natural England has indicated in its scheme that it will take. I believe that they will provide the assurances that noble Lords have sought in previous debates. They will ensure that local authorities, where they are willing to act, can have a key role in the implementation of the coastal access duty. I know that that has been of considerable concern to noble Lords opposite and therefore it is with some confidence that I beg to move.
My Lords, I am grateful that the Minister listened to, considered and accepted our concerns and I thank him for tabling these amendments. I hope that access authorities—in most cases they are local authorities—will get involved in the preliminary activity; indeed, the Minister has confirmed that that is the case. They have the potential to ensure that local issues are properly accounted for, the appropriate infrastructure is available and local residents are properly engaged. I welcome these amendments.
My Lords, the noble Lord’s confidence is not misplaced. We, too, welcome the amendments. Arguments in favour of including local authorities are entirely obvious to these Benches. My noble friend Lord Greaves tells me that they arose originally from representations by my noble friend Lord Tyler and his compatriots the honourable Members for St Ives and for Falmouth and Camborne. Maybe “compatriots” is the right word in the case of Cornwall, which regards itself as separate. The role of local authorities is something that we have not yet quite pinned down in other parts of the Bill, but I welcome it here.
My Lords, I am grateful for the response of both noble Lords and pay tribute to our past debates. There were one or two occasions when the debates were more protracted than they needed to be to make a point to a listening Government. We were happy to listen.
Amendment 124FA agreed.
124FAA: Clause 288, page 175, line 27, leave out subsection (7)
My Lords, in Committee the Minister helpfully raised the question of whether publishing the scheme on the internet was sufficient. I have tabled this probing amendment to give him another opportunity to expand his thoughts. I had hoped to table this probing amendment in relation to the report, rather than the scheme, but the extensive government amendments that we will discuss—and, I hope, accept—later would have pre-empted it.
I remain concerned that the extensive consultation and representation requirements in the Bill, which will do so much to ensure that the route is appropriate for the local situation, will miss the opportunity to hear from those who have a great deal to add to the process, purely because of their ignorance that the whole scheme is taking place at all. Obviously, there is a limit to what Natural England can do to make sure that people who should be informed are informed. The Minister mentioned the incomplete nature of the Land Registry, for example. Local councils, especially parish councils, probably know exactly who owns, or has an interest in, the land in their area.
There is also a perfectly effective precedent in the system, which is used when a planning decision is to be made. Notices are attached to lamp posts and those who will be affected and their neighbours are leafleted or written to, and so on. I hope the Minister can reassure us that this is the model that Natural England will be expected to follow. I also hope that Natural England will inform the parish council of over whose area the path will go. Parish councils will be able not only to make a valuable contribution as to the exact route through their areas but to help with liaison with landowners, especially where there is a gap in the registry.
It seems that the onus should be on Natural England or its agents to notify all—and I underline all—relevant parties interested in the routes, rather than for the onus to be on the landowners to find out what is being proposed for their land. I will be interested to hear how the Minister proposes to achieve this. I beg to move.
My Lords, I am grateful to the noble Earl, Lord Cathcart, for bringing this matter back. I understand that, in moving an amendment that relates to the scheme, he is particularly exercised about the reports.
I fully accept the intent behind the noble Earl’s amendments: to ensure that Natural England does everything that it can and that is reasonable to ensure that those with an interest who need the information get it. I agree that it is important that Natural England makes this information available. The provision in the Bill, which we agreed in Committee, requires Natural England to make information about the scheme available as soon as is reasonably practical and in a manner that it considers appropriate. We have not prescribed the formats in which it must publish the information, as that would run the risk of omitting formats that may be particularly relevant locally or that may become available in the future.
We have all acknowledged that we do not legislate on these matters very frequently, so it is important that the legislation is future-proofed as far as possible, but I fully accept that how information is made available and how landowners, occupiers and others with an interest in the proposals are engaged in the consultation process is of great importance. The availability to them of key documents, including information on the scheme and Natural England’s reports, will be of considerable relevance. I also take the noble Earl’s point about parish councils and the example of planning notices. Those are very important and good points to make, and I will ensure that Natural England understands that as well.
We debated the internet. The concern is that information would be posted only on the internet and that those who were not aware that it was going to be posted or who did not use the internet would have great difficulty in finding it. I very much agree with that point of view. The intention is not simply to post information about the scheme on the internet, although we expect the net to be used extensively. On the other hand, we want to bear in mind the environmental and financial costs of producing lots of hard copies. We want to get the balance right. The aim is to minimise the number of printed copies, but we will look to see whether there are other means by which key documents can be made available. I understand that public libraries have been used to make available other similar pieces of work and reports.
In conclusion, the noble Earl’s point is well made. We want Natural England to do everything that it can to ensure that relevant information is made available, and we accept that, while the internet is an important medium in which to do so, it should not be the only medium. I also accept the need to ensure that parish councils are thought about. That is also an issue for local authorities. We have just had a debate on the role of local authorities, which we all agree want to play an important part and work in conjunction with Natural England in preparing plans for coastal access. We are, of course, talking about top-tier local authorities, but non-metropolitan district councils in two-tier local government have an important role to play, as do parish councils. I fully accept that. That should also apply to Natural England in the information that it provides.
My Lords, I thank the Minister for reassuring the House that Natural England will do everything in its power, not just through the internet but through all other methods, to try to ensure that those who should know what is happening do know. I beg leave to withdraw the amendment.
Amendment 124FAA withdrawn.
Clause 291 : River estuaries
124FB: Clause 291, page 176, line 37, leave out from beginning to “Natural” in line 38 and insert “When exercising any power conferred by subsection (2) or (3),”
My Lords, Amendment 124FB is grouped with Amendment 124FBA. Clause 291 gives Natural England the flexibility to propose the establishment of the coastal route up estuaries to the first public foot crossing or to a point between the mouth of the river and that first crossing point. Estuaries throw up particular challenges with regard to this legislation. They are very variable in extent; they are important for wildlife; and they may be more developed than the open coast. We believe that it is important that Natural England should have the flexibility to decide on the approach to estuaries on a case-by-case basis.
As we said in Committee, the Bill requires Natural England, in deciding whether to make a recommendation to stop the route at any point between the mouth of the river and the first public foot crossing, to have regard to the general considerations set out in Clause 287 and also to a number of additional matters set out in Clause 291(4). These matters include, among others, the nature of the land, the topography of the shoreline and the width of the river upstream to the first public foot crossing. The criteria set out in this clause were tailored to be applied in the specific case where Natural England might propose that the coastal route should go up to a point between the mouth of the estuary and the first public foot crossing.
Concerns were raised in Committee. In particular, the noble Baronesses, Lady Byford and Lady Hamwee, and the noble Lords, Lord Greaves and Lord Taylor, expressed concerns about the extent of Natural England’s flexibility to include estuaries in the coastal margin. Amendment 124FB will require Natural England to have regard to the matters that I mentioned previously—among others the nature of the land, the topography of the shoreline and the width of the river upstream to the first public foot crossing—in making any decision to exercise its functions as if reference in the coastal access provisions to the sea included the relevant upstream waters of a river. This means that in relation to decisions to propose the route up to the public foot crossing, and to some point between that crossing point and the mouth of the river, it will be required to have regard to these matters.
I believe that Amendment 124FB will meet the web of complex concerns raised by noble Lords in Committee. The estuaries issue is complex because of the wide variety of estuaries that, as we all know, need to be considered. I hope the House will accept that the Government have listened to concerns about the provisions for estuaries and that government Amendment 124FB will command the support of the House in resolving some of the issues raised. I beg to move.
My Lords, we have Amendment 124FBA in this group. I think that the Minister would have found that the House would have agreed to the amendment to which he has just spoken even if he had not spoken to it. We certainly support it. Our amendment is rather smaller even though it has more words. Clause 291(4) sets out a number of matters to which Natural England must have regard. Although in some cases they are expressed in quite highfalutin terms, they actually address practical matters that would make a route workable. My noble friend’s Amendment 124FBA is a practical and realistic amendment which says that Natural England should also have regard to,
“the provision of car parking facilities and linking footpaths … and public transport services to the point at which the coastal route resumes on the other side of the estuary”.
He has looked at the issues that will concern walkers, such as what is convenient to them and what will make the route one of which they can take advantage.
My Lords, I again thank the Minister for responding to our concerns about the original drafting of the Bill and am glad to support his amendment. However, I have some sympathy with the amendment tabled by the noble Lord, Lord Greaves, and the contribution made in speaking to it by the noble Baroness, Lady Hamwee. We raised our concerns early in these proceedings that the infrastructure necessary for the full enjoyment of the route should not be ignored. We hope very much that the role of access authorities in the drawing up of the route will address the need for facilities and ways in which to rejoin existing rights of way.
My Lords, I am grateful to both noble Lords for their acceptance of the government amendment. It may therefore seem a little churlish of me that I am not too happy about the amendment moved by the noble Baroness, Lady Hamwee. It is the result of a distillation of representations made in Committee by the noble Lord, Lord Greaves, and others, about this important consideration. I do not decry the importance of the issue. The amendment would add consideration of onward transport links to the matters that Natural England must take into account in reaching decisions on the extent of access along estuaries. The amendment mentions,
“the provision of car parking … linking footpaths … public transport services”,
to rejoin the route on the other side of the estuary in cases where it is broken. That is an eminently sensible concept. Where practicable, however, Natural England will link up with routes leading to and from the coast when considering the coastal route itself. It would scarcely fulfil the objective of the legislation—access to the coast—if it did not take this very much into account. Of course it has to have regard to questions such as public transport links and car parking facilities. Having created the route, it is important to ensure that it is accessible to users both along the coast itself and how it should continue when crossing estuaries. Access should be by various means to attract as wide a variety of users as possible.
We are conscious of the fact that many different types of people will want to have access to the coastal route. I had the brief pleasure of being on the coastal path in Cornwall for a few days during the Recess and I can say that many and varied are the manners of men and women on that path. They range from people one can espy in the distance, and four hours later glimpse a considerable way behind, to others who in a matter of 20 minutes seem to close a gap of a mile or two and go whizzing past. We are all aware of the variations in pace of people using these routes, which is why there can be problems where the path is narrowly defined. That is also why issues beyond just the footpath have to be considered. However, the Bill is premised on these considerations, and there is no way that Natural England can set about its task of providing access to the coastal route unless it takes into account the points made so graphically in the amendment. It may be that this is expressed in more general terms as regards access and the desirability of continuing the route to a particular physical feature, but, as I say, the legislation is premised on Natural England making sure that access is achieved as readily as possible. I do not think that we need the amendment because the Bill already provides for these matters. I hope the noble Baroness will accept the government amendment in good faith and feel able to withdraw her own.
My Lords, owning, as I do, a major estuary in the south of England, I also welcome the Government’s attitude on this. It is totally impractical to consider transport and access paths to get to the coastal path. There has been now a compromise which is welcome to all.
Amendment 124FB agreed.
Amendment 124FBA not moved.
Clause 292 : Long-distance routes
124FC: Clause 292, page 177, line 43, at end insert—
“(2A) In subsections (2B) and (2C) “preliminary activity” means activity which Natural England considers would facilitate the preparation by it of a report under section 51 pursuant to the coastal access duty.
(2B) Where Natural England considers it necessary or expedient for preliminary activity to be carried out as respects any land, it must—
(a) consider whether it would be appropriate for the access authority in relation to that land to carry out any of the preliminary activity, and(b) if it concludes that it would be so appropriate, take all reasonable steps to enter into an agreement with the access authority for that purpose.(2C) An access authority may, as respects any land in its area, enter into an agreement with Natural England under which the access authority undertakes to carry out preliminary activity.”
Amendment 124FC agreed.
Amendments 124G to 124J not moved.
124JA: Clause 292, page 178, line 43, at end insert—
“(3A) A proposal for a diversion under subsection (3) may specify that the diversion is to operate as a permanent alternative route or only during the specified period (or periods).”
My Lords, in Committee we had a discussion, which became a little surreal at some points, about alternative routes and optional alternative routes predicated under new Section 55C(4). At that stage, I asked whether it was sensible to lump together the optional alternatives that would be required because of the tide, which comes and goes, coastal erosion, which, by and large, will go but not come, and so on. The clause seems to cover quite different situations.
The amendment tabled by my noble friend Lord Greaves provides that the diversion may be specified,
“to operate as a permanent alternative route or only during the specified period (or periods)”.
In other words, he is putting forward a moderate proposal that makes it possible to create an alternative under new Section 55C(3) that is an option all the time in any area, if that is a sensible thing to do. At the moment it seems that this is not possible under the Bill.
Surely there are many cases where an alternative route could stay open all the time as an option to be used. If it is well used, more people will, of course, use it. My noble friend tells me that there are examples of existing long-distance routes, such as the Pennine Way, where there are alternative routes that are open all the time. Those taking the Pennine Way decide which route to take.
I hope that the amendment commends itself to the Government. It is intended to be constructive and helpful and to reduce what we see as a rather odd and confusing provision. I beg to move.
My Lords, I am grateful to the noble Baroness for the way in which she has proposed her amendment and I recognise the good intent behind it. However, there is something of a collision between the Government’s interpretation of the amendment and the clause to which it relates and the terms indicated by the noble Baroness.
The concept behind the noble Baroness’s proposal is that the alternative route should operate at all times; indeed, she has extolled the virtues of that concept. The provision would mean that in some cases users would have a choice of routes. Indeed, it could have the effect of creating circular routes. Now, no one will object to circular routes in principle, because we all know the advantages of going on a walk in which we do not need to directly retrace our steps but can go in a circle. I recognise the virtues of the concept that the noble Baroness is putting forward; it would offer the merit of these choices. However, the purpose of the existing provision in Clause 292—new Section 55C, “Alternative routes”—is entirely different. It is not to create more than one choice but to provide an alternative route to the ordinary route when that route is out of action or unavailable. It is not intended that alternative routes should be permanent and therefore a secondary coastal path, or that they should constantly operate alongside the ordinary route. It is straining the concept of this clause a bit too far when we have made provision for an alternative route because you jolly well have to have that provision if for some reason the existing route becomes impassable or unusable.
Our interpretation of new Section 55C(3) allows for the inclusion of alternative routes to operate during a specified period or period when access to the ordinary route is excluded by reason of a direction under CROW to exclude or restrict access. This might be for land management purposes or for the necessary protection of wildlife. The provision for alternative routes to operate only at specified times when the ordinary route is not available is part of the fair balance, which we have been discussing intensively today, between the interests of the landowner or occupier and the interests of the public in having the coastal route. It will ensure that continuity of access is maintained for the purpose whenever access to the existing main route is withdrawn for good reason.
In addition to the provision for alternative routes to act as a diversion when the ordinary route is not available for a period, new Section 55C(4) provides for Natural England’s report to include an alternative route, which will operate as an optional alternative to the ordinary route, or to be part of it, where the ordinary route might reasonably be regarded as unsuitable for use in particular circumstances. This might be nothing to do with land use, which we have just discussed, and the issues of land ownership, but might instead be due to flooding, the action of the tide or the problems caused by coastal erosion. This will ensure that the safety and continuity of the route are maintained even where difficulties occur because of those factors.
We recognise that there will be localised opportunities to deliver wider benefits for people to enjoy the coast—for example, by improving access from inland or by providing circular walks and links with public transport. We discussed that on the earlier amendment, and the Government see the virtues behind those concepts. As part of the process of recommending the position of a route, Natural England will consider such opportunities. Such provision would be made in agreement with landowners. Natural England has included its estimates of costs for implementation and allocation to support the delivery of the very same wider opportunities that the noble Baroness has mentioned in support of her amendment.
Using the alternative route provisions, however, is not the correct way to provide for circular routes. That is not the intention of the clause, which is to provide an alternative when the main route cannot be used for a variety of reasons. Although I recognise the intent behind the amendment, and I do not resile from the necessity of developing aspects of the coastal route to provide circular routes and so on, which localities will alight on, the concept in this clause on the alternative route is to guarantee that the coastal route functions when, for good reason, the permanent route is out of action and there needs to be temporary provision. That is why I hope that the noble Baroness will feel that the amendment is not well placed. I hope that I can persuade her to withdraw it.
My Lords, had I been leading on this part of the Bill, my amendment would have taken out the word “optional”. I still struggle with the concept of an optional alternative under new Section 55C(4). Is it an optional alternative to take a route that does not involve wading through floodwater? I am not sure that I would regard that as optional, although some people perhaps would not mind doing it. I will withdraw the amendment but, by using the word “optional”, the Government themselves seem to have introduced the concept of circularity and the possibility of there being a circular route. Of course, there should be an alternative to deal with temporary or permanent constraints on using a route as originally designated.
The intention of the amendment was not to create circular routes. That is a good notion, but I do not believe that it was in my noble friend’s mind. I still think that new Section 55C is not as clear as it might be, because it puts together both permanent and temporary problems and suggests that avoiding them is optional. Having said that, I beg leave to withdraw the amendment.
Amendment 124JA withdrawn.
124K: Clause 292, page 179, line 29, at end insert—
“(2A) The report must contain—
(a) a map showing the landward boundary of the relevant coastal margin, or (b) a description of that boundary which is sufficient to identify the relevant coastal margin.(2B) Where a map is contained in a report pursuant to subsection (2A)(a), Natural England must provide a person with a relevant interest in affected land, on request, with a copy of that map.”
My Lords, we discussed in Committee the issue raised by the noble Lords, Lord Taylor, Lord Greaves and Lord Cameron, about whether a map could clarify the route, location and extent of the coastal margin. As my noble friend Lord Davies said in the debate, the line of a coastal route will be included in a map that forms part of Natural England’s report. He made it clear that in most situations maps will not be necessary to clarify where the coastal margin lies. We were concerned that Natural England would have to engage in an expensive mapping process, when money could be better spent on matters such as communications and information, better interpretation facilities at the coast and work to facilitate wider access. In general, that is the right approach. However, I have considered the matter further and I recognise that it is an important issue on which it is necessary to provide further reassurance, in particular to landowners who wish for clarity on the areas of land to which the new right of access will apply.
Amendment 124K requires Natural England to include in its coastal access report under Clause 292 a map showing the landward boundary of the relevant coastal margin where it is not able to provide a description of the boundary sufficient to identify it. Natural England will be required to describe the route in the report proposed under Section 51. The boundaries of the margin must be clear, so that people will be in a position to make representations about it, and the Secretary of State must be sufficiently well informed to be able to make a determination on the report. The Bill enables Natural England to describe the boundaries of the coastal margin clearly in the report, by means of either a map or words.
I expect that, in the vast majority of cases, Natural England’s description of the margin will be sufficient to suit all parties. However, in some cases Natural England may want to provide a map for clarity. In particular, a map may be helpful where the coastal landscape is complex and difficult to describe in words. In this case, a map would be more appropriate. In addition, a map may be useful where Natural England is using its discretion for the margin on the landward side of the route to extend to a physical feature as set out in new Section 55D(2). The amendment will also require Natural England to provide a copy of the map on request to the person with a relevant interest in that piece of affected land.
I hope that this will give landowners the assurance that they and noble Lords will seek. It is important also for visitors and those who wish to use the new rights. I hope that the amendment is regarded as a sensible response to legitimate concerns. I beg to move.
My Lords, I thank the Minister for explaining the thinking behind the amendment. It appeared at an earlier stage that Natural England had an option not to produce maps but simply to provide a description. Many of us will have been briefed by the NFU on its worries about that arrangement. Since we failed earlier today to restrict “coastal margin” to the seaward side of the route, I am happy to accept the Minister’s amendment and once again thank him for attempting to resolve our concerns, even if he has not gone the whole way, as we were looking for.
Once we have included the Minister’s splendid amendment in the Bill, resulting in the showing of a landward boundary on a map, plus a description of the boundary, do the Government really think it necessary still to include new subsection (7), whereby Natural England is required to include access information in an additional report? Is that not rather going over the top? Also, can the Minister reassure me that the maps will be able to be amended if at some future date a change in land use or rollback takes place, as we cannot afford to set a coastal path in stone?
My Lords, I agree with the noble Duke on his latter point: there has to be flexibility and opportunities to revisit. On his first question, I do not think that subsection (7) is overegging the pudding. As a recent debate illustrated, it is important that this information is made available. The amendment sensibly ensures that, where words will not suffice, a map is provided, and I welcome the noble Duke’s support for it.
Amendment 124K agreed.
124L: Clause 292, page 180, line 31, leave out from beginning to end of line 3 on page 182 and insert—
“55E Consideration of reports made pursuant to the coastal access duty
Schedule 1A contains—
(a) provision about the procedure to be followed when a report is submitted under section 51 pursuant to the coastal access duty;(b) provision which, in relation to such reports, supplements the provision made by section 52.”
My Lords, we come to an important part of today’s discussions. We had a detailed debate in Committee about how we would ensure that the interest of landowners was taken into account in the coastal access proposals. I have read the conclusions of the various committees of your Lordships' House and the other place. I am grateful particularly to the noble Lord, Lord Goodlad, and his committee for the strength of their comments. I said in Committee that I was looking at proposals for an objections mechanism which would involve an independent person looking at objections to Natural England’s proposals.
I have therefore tabled Amendments 124L, 124M, 124N, 124P, 124Q, 124R and 124U which, taken together, replace the previous mechanism for considering Natural England’s coastal access reports with a new mechanism that includes provision for an objections procedure. Amendment 124S deletes the provision enabling an order under new Section 3A to provide that no appeal may be made under Section 30 of the Countryside and Rights of Way Act 2000 against decisions relating to land which is coastal margin.
Amendment 124U inserts a new schedule, Schedule 1A, into the National Parks and Access to the Countryside Act 1949. It sets out the process for considering Natural England’s coastal access reports. I should like to run through that procedure in some detail.
Paragraph 2 of that schedule says that Natural England must advertise a coastal access report and must take reasonable steps to give notice of the report to those with a relevant interest in affected land and to certain bodies, and to persons set out in regulations. Paragraph 3 says that those with a relevant interest in affected land may make objections that Natural England’s proposals fail to strike a fair balance on certain grounds. They must specify the reasons why they are of the opinion that a fair balance has not been struck. The person making the objection may propose modifications of the proposal.
To be relevant, any modification proposed either at this stage or at a later stage by the appointed person must meet certain criteria. These are that they must be practicable, take account of the considerations mentioned in Clause 287(2)—considerations about safety and convenience of the route, the desirability of the route adhering to the coastal periphery, keeping interruptions to a minimum—and, where appropriate, Clause 291(4), dealing with estuaries. They must also be in accordance with the scheme which is drawn up by Natural England, approved by the Secretary of State, and laid before both Houses of Parliament. These conditions are set out in paragraph 3(6).
Paragraphs 4 and 5 require Natural England to forward any objection to the Secretary of State. The Secretary of State must refer the objection to the appointed person. I make it clear that we envisage that this will be the Planning Inspectorate. The appointed person must initially decide if it is admissible—that is, meets the conditions for making an objection above and is made in accordance with any regulations as to the form and manner of objections and period within which they are to be made. I know that the status and qualifications of the appointed person will be of great significance. I believe that in the inspectorate we will have the independent element in the chain of decision-making about coastal access reports which will give confidence in the objection procedure for those who may bring forward such an objection.
Paragraph 6 says that if the independent person decides that the objection is admissible, the Secretary of State must collect together information relating to the land about which the objection is made. This includes Natural England’s comments on the objection, copies of relevant reports, representations made on the report or any summary of representations and Natural England’s comments on them. The appointed person may require Natural England’s comments to include information on any relevant alternatives or rejected options. This is because it is not the role of the appointed person to repeat the work of Natural England in identifying all alternatives; this mechanism enables the appointed person to be in possession of all the information that Natural England has gathered that is relevant to the objection, and the alternatives that Natural England has considered.
Paragraphs 7 and 8 say that anyone may make a representation to the Secretary of State on the coastal access proposals. Representations from certain bodies, and representations from the persons set out in regulations, which I mentioned earlier, will go in full to the Secretary of State together with Natural England’s comments on them. Other representations will be summarised by Natural England and sent to the Secretary of State with Natural England’s comments. Paragraph 9 requires the Secretary of State to send information on admissible objections to the appointed person. Paragraph 10 says that the appointed person will consider the information and if he is minded to decide that a fair balance has not been struck he will publish the objection and invite representations. Anyone can make representations to the appointed person. The intention here is that the appointed person is required to make a preliminary decision that a fair balance has not been struck but that there are still a number of steps to carry out before he is able to make a final recommendation.
Paragraph 13 provides that the appointed person may limit the proceedings to written representations, or he may hold a hearing or local inquiry where he considers it necessary or expedient to do so. Paragraph 11 deals with the recommendation of the appointed person to the Secretary of State as to whether he should determine that the proposals fail or do not fail to strike a fair balance. If he recommends that they do fail to strike a fair balance, then the appointed person must recommend either that no modification would strike the fair balance, a certain modification would strike the fair balance, or a certain modification may strike the fair balance. Where he recommends that no modification would strike a fair balance, he may additionally recommend that a certain modification would, or may, mitigate the effects of the failure to strike a fair balance. Any modification must be in accordance with the criteria set out in paragraph 3(6), which I mentioned earlier.
The Secretary of State makes a determination on the report as a whole. In making the determination, he must consider certain information including any objections, Natural England's comments on them, the report from the appointed person and any representations made and Natural England's comments on them. This is set out in paragraph 16.
At this stage, it will be for the Secretary of State to consider whether he should approve the proposals with certain modifications, which in the opinion of the appointed person either might, or would, mitigate the effects of the failure to strike a fair balance. The Secretary of State could approve the proposals with a modification so that they came as close as possible to meeting a fair balance in accordance with the coastal access requirements. We recognise that there may be some instances where the Secretary of State might consider that there was no practicable route that would strike a fair balance because of the effect on the landowner, but where in the circumstances the option of leaving a gap in the route would not appear to strike a fair balance either, for instance, because of the inconvenience of a gap in the route or because access would be denied to particularly attractive coastline. In these cases, the Secretary of State would look at the option which came closest to providing a fair balance.
The Secretary of State must give notice of his determination to persons with a relevant interest in affected land or publish such notice, and must give notice to certain bodies. The notice must include, so far as is relevant to the objection, a statement of his reasons for the determination. That is set out in paragraph 17.
I apologise for going through this procedure in some detail. Clearly, it is an important procedure, and I hope that this has been useful in aiding understanding of how it will work. It has been carefully structured so that it reflects the structure of the Bill. I am very grateful to noble Lords who have taken part in our discussions, many of whom are in the Chamber. As regards the amendments tabled by the noble Baroness, Lady Hamwee, I realise that we have not quite met all concerns, but I do think that in general—I welcome the support of the noble Lord, Lord Taylor, for this—we have achieved the right balance that noble Lords have sought. I beg to move.
My Lords, I am most grateful to the Minister for responding positively and in such detail to the recommendations in the report of your Lordships’ Select Committee on the Constitution, published on 18 December last year, that the range of powers contained in the Bill to require coastal landowners to permit public access to their property should be accompanied by a right to appeal to an independent body and that the possibility of making a claim for judicial review in the High Court would not have been proportionate or realistic for the vast majority of aggrieved citizens. I welcome the Minister’s confirmation in very recent correspondence that it will, none the less, be open to a person who believes that the Secretary of State’s determination in respect of a coastal access report is legally flawed to seek a judicial review of it.
Your Lordships’ committee has recently expressed concern that the government amendment does not refer in direct terms to the inspectors of the Planning Inspectorate and that the status and qualifications of the appointed persons are of constitutional significance. In your Lordships’ committee's view, the proposed system of appointed persons should be seen to operate at arm’s length from Ministers and from Natural England. The Planning Inspectorate, a recognised appellate body, would, in the view of your Lordships’ committee, satisfy that requirement.
The Minister has explained in recent correspondence where the Government do not believe it desirable to make a direct reference to inspectors of the Planning Inspectorate in the Bill, although he has expressed the Government’s intentions in his speech. He may wish to share with the House the undertakings that he gave to me in his letter of 29 May about the persons to be referred to in the envisaged regulations. However, I reiterate that I am extremely grateful to the Minister and the Government for the attitude that they have shown and for the Minister’s typical courtesy.
My Lords, I thank the Minister for tabling these amendments. I have added my name to them to indicate my satisfaction that the Government have listened to voices from many quarters and have come back with a procedure that they hope will meet those concerns. I also thank the Minister for his discussions with organisations such as the CLA and the NFU, in addition to others. They, too, have been much involved in trying to find a satisfactory solution. Furthermore, as my noble friend Lord Goodlad has just said, this is a satisfactory response to our own House of Lords Constitution Committee, the Joint Committee on the draft Bill and the EFRA committee, all of which were exercised about the Government’s previous stance on this issue. The Government have now got it about right.
Of course, I have a few questions about these amendments, as I am sure will other noble Lords. In particular, I would be grateful for a little more information about what happens after the appointed persons—or, as we may take it, the Planning Inspectorate—have ruled that the route does not meet a fair balance. The helpful notes that the Government have published on these amendments suggest that it is entirely down to the Secretary of State whether to accept the independent appointed person's ruling. As far as I can see, there is nothing to ensure that the ruling is enforced.
Is this really the way forward? Surely it would be better, in cases where there is no convenient way through a particularly troublesome patch of coastline, for the route to stop and continue after a short break than to breach what the Government have accepted are the legitimate rights of an owner or occupier to the use of his land? Of course, we would not want to see lots of breaks, or unnecessary breaks, in the coastal route, but it will only be in the most unusual circumstances that it is found to be impossible to continue the route without imposing an unfair balance on the landowner. Indeed, it would be most unlikely that it would ever be found to be impossible to backtrack a little and send the route to meet up with an existing right of way around a difficult patch.
However, aside from this small concern, we are very happy with the Government's proposals. I thank the Minister and his team of officials once more for agreeing to what was probably the most important concern that we had with this entire Bill.
My Lords, my noble friend’s amendments do not indicate dissatisfaction with the Government’s amendments, but it would have been out of character for him not to have gone through the several pages of the principal amendment with a fine-toothed comb and come up with a number of small matters, which I now raise.
My noble friend has e-mailed me to say that he supports this system. He describes it as,
“a worthwhile compromise to support at this stage, giving the Commons more time to consider it further”.
Again, he is not disagreeing with the Government’s approach. Rather, because he is meticulous in these things, he wants to ensure that it has the rigorous scrutiny that the proposal deserves. I shall try to go fairly quickly through the points that his amendments raise. Amendment 124V to line 33 in paragraph 2(2) of Amendment 124U would add to those who are to be given notice of the report,
“representatives of relevant recreational users and conservation interests”.
My briefing on this is fairly obvious, but the Minister may be able to give the House an assurance that these groups will be included in regulations made under paragraph 2(2)(f). I hope that is the case.
On Amendment 124W, I am not sure that there is more to be said about striking a fair balance and aiming to strike a fair balance. I appreciate that my noble friend’s amendment would tilt the careful balance—I have to use that word again—a little way away from where the Government are aiming to strike it because the focus is on what Natural England has done rather than the outcome of it.
Amendment 124X seeks to leave out the reference to practicability. I understand that this amendment comes from the Ramblers’ Association, which writes:
“Making practicable a separate requirement for the appointed person to satisfy under 3(6)(a) when proposing modifications risks allowing interruptions to the route being accepted as modifications. To allow such modifications would destroy the integrity of the route and defeat the purpose of the coastal access duty. To avoid this it is necessary that the appointed person uses only the second and third requirements of 3(6) when considering and making modifications”.
I do not know whether the Minister can add to the points that he made in his opening remarks about the various routes that might be taken in this regard.
As regards Amendments 124Z, 124AA and 124AB, comments on coastal access reports made to Natural England by third parties have only to be summarised. These amendments would provide that they should be sent in their entirety to the Secretary of State. It is not proper that the Secretary of State should make a final decision on the basis of a summary. I am sure that there are plenty of people in the Secretary of State’s office who can assist in providing a summary, if that is helpful. However, comments made by third parties to Natural England should not be summarised.
Amendment 124AC seeks to remove certain provisions as regards what may be included in the report. My noble friend tabled this in order to probe the matter. The Minister has probably described the position pretty fully. I do not know whether he wants to add anything to those comments. Amendment 124AD is also a probing amendment with regard to costs applying to local inquiries. I should be grateful if the Minister would say how the Government came to the conclusion that this provision should be included.
The notes say,
“124AF and 124AG—obvious I hope”.
Amendment 124AF, which is obvious, would add a provision that the Secretary of State must publish the determination. Amendment 124AG is on the same point. The paragraph which my noble friend seeks to remove allows the Secretary of State to publish only if he “considers it appropriate”. Amendment 124AH, which my noble friend says is also obvious, would add to the list of those to whom the Secretary of State must give notice of the determination anyone who has made a representation,
“in connection with the affected land”.
All of that might seem somewhat picky, splitting hairs and so on, but, as the noble Lord, Lord Taylor, said, this has been a very contentious area—or the lack of it has been contentious—and my noble friend is rightly concerned to contribute to the best outcome possible.
My Lords, I was one of those who expressed concern in Committee about the absence of appeal provision in the Bill. I echo noble Lords in thanking the Minister for moving significantly further than a coastal margin by introducing these amendments. However, I have a continuing concern about the government amendments.
Can the Minister confirm my understanding, which is the same as the understanding of the noble Lord, Lord Taylor, that the Secretary of State will have no duty to adopt the conclusions of the person appointed—the planning inspector? That person simply makes a recommendation which the Secretary of State must consider, but need not follow. The provision will give the Secretary of State, as I understand it, complete discretion on whether to agree or disagree with the judgment of the planning inspector.
The Minister will know that the Joint Committee on Human Rights advised in its 11th report of Session 2008-09 that, in order to comply with Article 6 of the European Convention on Human Rights, it is necessary to provide for an appeal to an independent person who has a power to decide the issue. That is because the decision will determine civil rights, and judicial review is not a sufficient remedy for Article 6 purposes on an issue which raises questions of fact and degree. That was the view of the Joint Committee. I respectfully agree with it.
Can the Minister please explain to the House what is the policy objection to the Planning Inspectorate, as the person appointed, having a power to take the decision in this context? Or at the very least, what is the policy objection to confining the power of the Secretary of State to interfere with the view of the Planning Inspectorate to exceptional circumstances where an issue of policy arises?
I ask the Minister to reconsider that aspect of these helpful amendments. I ask him to reconsider giving the Planning Inspectorate, as the person appointed, the power to decide on matters, other than in exceptional circumstances where the Secretary of State considers that an issue of policy arises. If the Minister does not reconsider and does not introduce a further amendment to that effect, my concern is that the United Kingdom will inevitably face expensive and protracted legal proceedings brought by aggrieved landowners that the next Government are likely to lose in Strasbourg in four or five years’ time.
My Lords, it would be remiss not to put on the record from these Benches our appreciation for the tremendous amount of work that has gone into this amendment by my noble friends and, of course, by officials. The noble Baroness, in running through her remit from her noble friend, referred to small matters. I am not sure that they were all small matters. As one who is intimately involved in the national parks, I have been close to the real anxieties among those who have a huge contribution to make to the country in their concern for quality in terms of amenity, conservation and recreation.
I know that there are several references to relevant interests and the Secretary of State will have the power to decree what they are, as the Secretary of State will make regulations. It would be reassuring and helpful for these tremendously committed and important people in our society if my noble friend could unequivocally say at the Dispatch Box that the regulations will underline the importance of such bodies being part of the list of people to be consulted, not least on appeals. That is where the anxiety exists. The Government have demonstrated time and again their exciting commitment to quality and such considerations in so much of their policy and how it is carried out. It would therefore be a pity if such reassurances were not forthcoming when my noble friend replies.
My Lords, first, I congratulate the Government on their Amendment 124U. I felt strongly before the amendment was tabled that natural justice for landowners was not contained in the Bill. A balance needs to be struck, and the amount of work to produce the amendment, as the noble Lord, Lord Judd, said, is admirable. I am sure that a tremendous number of hours were spent producing the amendment.
I take note of the remarks of the noble Lord, Lord Pannick, on human rights. He made some powerful points. We are in a difficult position with this part of the Bill, as we have to judge the issue of accountability. I can understand where the noble Lord is coming from in relation to the Planning Inspectorate, but we also have to balance the accountability of the Secretary of State. This is a difficult area. The words of the noble Lord, Lord Pannick, carry a lot of weight in this argument. The noble Lord, Lord Judd, agreed with many of the amendments put forward by my noble friend Lady Hamwee for our noble friend Lord Greaves, and I believe that my noble friend agreed substantially with what the noble Lord, Lord Judd, said.
The important points in the amendments, although some are points of detail, must not be cast aside. I, too, have knowledge of national parks—I live close to one—and have seen all kinds of problems being resolved, or not. The detail is not to be cast aside even though the substantial government amendment is to be warmly welcomed.
My Lords, it has been a highly interesting debate. I start by responding to the noble Lord, Lord Goodlad, and welcoming his overall comments. He invited me to clarify a couple of points that he has raised in correspondence, which I am happy to do.
The first point is why the amendment does not refer directly to the Planning Inspectorate. The simple answer is that we would not expect a Bill to be so specific. The Planning Inspectorate might alter or disappear; or it might change its name in future. The current wording of the Bill preserves the ability to change the appointed person if necessary. The Planning Inspectorate is not a body established by statute, so that flexibility is of particular relevance. In addition, although we do not envisage there to be at this stage, there might be cases where the Secretary of State decides that the most appropriate person to whom to refer objections is someone other than the Planning Inspectorate. Again, the current wording gives the flexibility to do that. However, if that were to happen, I would expect that if it was a person other than the Planning Inspectorate, it would have the same kind of qualifications and independence of judgment. I am happy to reiterate that point.
I will come to the question of judicial review in a moment, but I confirm that it will be open to a person who believes the Secretary of State's determination in respect of a coastal access report is legally flawed to seek judicial review of that determination.
I come to the question raised by the noble Lord, Lord Taylor, and the noble Lord, Lord Pannick: why there is no requirement for the Secretary of State to accept the recommendation of the appointed person. That is a fair question, but there are two points here. First, one has to be clear: the Secretary of State has a different role from that of the appointed person. The noble Lord, Lord Livsey, put his finger on it when he talked about the Secretary of State's ultimate accountability. I strongly reiterate that point. The Secretary of State's role is to look at the report for the whole stretch of coast. There may be reasons why and circumstances in which the Secretary of State may disregard the recommendation of the appointed person when looking at the overall stretch of coast. However, I confirm that that would be extremely unlikely and would be done only for very good reason. Ultimately, the Secretary of State's determination on the report as a whole would be open to judicial review.
Paragraph 16 makes clear that the Secretary of State must consider a report of the Planning Inspectorate before making a determination on a stretch of coast. It would not be a light matter for the Secretary of State simply to turn down or reject the recommendation of the appointed person. None the less, we believe that, ultimately, the Secretary of State must be able to do so, although, as I said, it is likely that that would be a very infrequent event.
I am reluctant to debate ECHR matters with the noble Lord, Lord Pannick, given his wide expertise. All that I can say at this stage is that I have very carefully asked for advice on the matter. I am assured from the advice that I have been given that the provision is ECHR-compliant, although of course I would be happy to engage with the noble Lord in further discussion on the matter. I fully accept that the comments that he and the noble Lord, Lord Taylor, have made are meant to ensure that the legislation works as effectively as possible. I would certainly be very happy to have further discussions on that matter, bearing in mind that, although we have spent nearly six months debating the Bill, it still has to go to the other place, so there is time for further consideration.
On what happens if the appointed person recommends that there is no modification that would satisfy the coastal access requirements, I say to the noble Lord, Lord Taylor, that I hope, as does he, that the circumstances in which that occurs would be very rare. He asked how often that would be likely to happen. I agree with him on that. We are trying to get the best balance so paragraph 11(8) of new Schedule 1A states that the appointed person may in this situation recommend that the Secretary of State should approve the proposals with certain modifications which in the opinion of the appointed person might or would mitigate the effects of the failure to strike a fair balance. In the situation envisaged under paragraph 11(7)(a) the Secretary of State would be required to consider any recommendations made under paragraph 11(8)(a) or (b), and we expect the Secretary of State would approval the proposals with a modification so that they came as close as possible to meeting a fair balance in accordance with the coastal access requirements. That makes it clear that the Secretary of State has to make the final decision because he is looking at the proposal as a whole.
The Government agree with the assessment made by the noble Baroness, Lady Hamwee, that the noble Lord, Lord Greaves, is meticulous in his approach, even on his sickbed, and we sense his analysis of this government amendment. I welcome his general support for what he described as a worthwhile compromise. Given that noble Lords have come from a different view on these matters and on objections, it is helpful to reach this consensus and confidence in the Bill as it goes forward.
I thought the noble Baroness made a heroic effort to explain these amendments, and I come to them in some detail. Amendment 124V would make,
“representatives of relevant recreational users and conservation interests”,
one of the categories of persons to whom Natural England must give notice of a coastal access report. I understand the point about users being fully taken into account in the process. The categories of persons to whom Natural England must give notice already include,
“such other persons as may be specified in regulations”.
For all the reasons that we have discussed on many occasions, we prefer to keep the flexibility of regulations following consultations. I listened to my noble friend Lord Judd with great care, and we will have to consult in full on the persons it would be appropriate to include, but we have in mind that they would include the Ramblers’ Association, the Open Spaces Society, the British Mountaineering Council, the Country Land & Business Association and the National Farmers' Union, and we will listen to other suggestions with great interest, but I think noble Lords can see the balance that we think we need.
On Amendment 124W, the noble Baroness recognised that we think it tilts the balance, and that is our problem with it. It would amend the ground of the objection at paragraph 3(3) so that instead of saying that the proposals in the report,
“fail to strike a fair balance”,
it would say that they,
“fail to demonstrate that Natural England aimed to strike a fair balance”.
That would mean that the landowner could not object that Natural England has got the balance wrong. As long as Natural England can show that it aimed to strike a fair balance, the objection will fail. As the noble Baroness said, it tips the balance too far. That is why we really cannot support it.
Amendment 124X is what the noble Baroness described as the ramblers’ amendment. I understand where the ramblers come from. They are, of course, intrepid explorers. No doubt, to them an impractical route would just be a daunting challenge, but none of us would wish to have a coastal access report modified in a way that makes a route impractical. Surely practicality must be a key concern for all parties. I have checked this and I understand that there are many precedents for using the term “practical” in legislation. According to a search that we undertook last week, there are well over 3,500.
Amendment 124Y would allow the Secretary of State to make regulations covering the advertising of objections, and actions taken on objections, made by persons with a relevant interest in the land. This amendment would enable objections to be advertised before the appointed person has had an opportunity to consider whether any objection is admissible. Of course, once the Secretary of State has taken that initial decision, any objection that is admissible would be advertised. The amendment appears to visit advertising at too early a stage.
Amendment 124Z would mean that Natural England must send the Secretary of State a copy of the representations made by other persons on a coastal access report, other than those set out in paragraph 2(2)(a) to (f), instead of only a summary of those representations. In speaking to Amendment 124V I have already named several bodies that we expect to include in the regulations, so that their representations would go in full to the Secretary of State. They include such organisations as the Country Land & Business Association, the NFU, the Ramblers’ Association and the Open Spaces Society. We do not think that the amendment is required.
Amendment 124AC would delete paragraph 11(8). It is important to provide that, where the appointed person considers that Natural England’s proposals may fail to strike a fair balance and there is no modification that would satisfy the coastal access requirements, the appointed person may recommend that a certain modification would or may mitigate the effects of the failure to strike a fair balance. We have already discussed that. This power is a very sensible provision where the Secretary of State considers that a gap in the route is undesirable but, in that context, attempts to strike as fair a balance as possible. Of course, here the advice of the Planning Inspectorate or the appointed person would be very helpful.
Amendment 124AD deletes paragraph 13(3), which provides for subsections (2) to (5) of Section 250 of the Local Government Act 1972 to apply to any local inquiries or other hearings held by the appointed person. The amendment would mean that there would be no specific rules governing the conduct of inquiries and such procedural matters as summoning witnesses and paying their expenses. It would also mean that the appointed person would be unable to make any orders about the cost of the inquiry. Consequently, the Secretary of State would always bear the cost of the hearing or inquiry. The noble Baroness asked why we did not use Section 250. The provisions that we have put in place mirror therequirement for applicants under the CROW Act, as set out in Schedule 3 to that Act. That is probably a rather more relevant piece of legislation to refer to.
On Amendment 124AE, we think it appropriate that the Secretary of State can make regulations covering the procedure for the conduct of local inquiries and hearings. The removal of this ability could make the inquiry process unworkable. The procedures for dealing with appeals against any restrictions and exclusions of access under the CROW Act system were set out in regulations, and we should follow that precedent here.
Amendments 124AF and 124AG would make changes to the way in which the Secretary of State might publish his determination on the coastal access report under Section 52 of the 1949 Act. The current provisions provide some flexibility for the Secretary of State and are appropriate in the circumstances, so we are not happy to consider the changes proposed in the amendments.
Finally, Amendment 124AH would require the Secretary of State to notify those who have made representations to Natural England under paragraph 7(1) after he has made a determination on Natural England’s coastal access report. Those persons are already covered by the notification requirements in the paragraph, as the Secretary of State must inform all those with a relevant interest in affected land. Such persons would be the ones to make the objections, so we have covered the point raised by the noble Baroness. I do not know whether the noble Lord, Lord Greaves, would think that he had had a fair response. I understand where he is coming from, but overall I think that we have got the balance about right, so I hope noble Lords will give the government amendments a fair wind.
Amendment 124L agreed.
124LA: Clause 292, page 182, line 3, at end insert—
“55EA Changes in land use
(1) A person with a relevant interest in affected land may notify Natural England of a change in land use and request a review of the route.
(2) Where Natural England is informed of a change in land use under subsection (1) above but decides that a review of the route is not necessary, they shall inform the person of their reasons.”
My Lords, my amendment seeks to ensure that the coastal route and margin is properly updated to take account of changes in land use. I know that we have already had an interesting discussion about how the coastal route will affect, and be affected by, any planning decisions, and I was glad to hear the Minister’s reassurances that the coastal route and its associated margin will not sterilise the land.
My amendment is targeted not at the changes in land use that require planning permission but at decisions about land use that will not require planning permission. In particular, many of the decisions that a farmer might make about a field do not require planning permission but might significantly affect the route and margin. I would be grateful to hear from the Minister how a decision to plough up a field that was previously used for grazing or a decision to plant a wood that necessitated rabbit fencing might affect the route and margin. What if a farmer decides to drain a field, necessitating the digging of a drainage ditch that crosses the route? I understand that if a farmer cannot block access, perhaps by new fencing, he must ensure that there is a method of climbing over the new obstacle. Who then bears the cost of a stile or a grid?
The land covered by the route and margin will, without doubt, change over time. As it stands, Natural England has the necessary powers to reassess a report, but there appears to be no mechanism for ensuring such a review as and when it is needed. My amendment therefore seeks to allow,
“A person with a relevant interest in affected land”,
“notify Natural England of a change in land use and request a review of the route”,
“Where Natural England is informed of a change in land use under subsection (1) above but decides that a review of the route is not necessary, they shall inform the person of their reasons”.
This would be a useful provision in that it would not only help Natural England but make the coastal route more user-friendly if a new route was agreed either on a permanent or a temporary basis. I beg to move.
My Lords, I am grateful to the noble Lord for the way in which he moved Amendment 124LA, which seeks a new provision where there is a change in land use; namely, that the owner or occupier may notify Natural England of the change and seek a review of the route. Natural England would be required to give a reason to the owner or occupier where a review is not considered to be necessary.
The noble Earl acknowledged that the legislation regarding the development of coastal access will not be a barrier to development, a point which was discussed on earlier amendments. The CROW right of access is a right which is flexible to allow for changes in land use, about which the noble Earl expressed anxiety. The line of the route and spreading room is not fixed permanently. The Bill enables Natural England to review these and to propose changes to the Secretary of State, subject to the full consultation and representation process, at a later date. In that way, the legislation can take account of changes in use and future developments. We touched on these points in our earlier debates. Should the route be blocked as a result of development, which results in the land becoming excepted from the right of access or which may in the future result in the land becoming excepted land, Natural England will be able to undertake a review of the route and draw up a report proposing a variation on the route. That flexibility is built into the legislation. Therefore, I do not think that the noble Earl’s anxieties about the way in which the legislation will work are well founded. The existing powers are adequate to ensure that future development is considered appropriately and that Natural England’s reports are reviewed where necessary.
Therefore, within that framework, I hope that the noble Lord will feel that most of his anxieties have been allayed by the necessary flexibility. Land use for agricultural purposes will become excepted land under CROW in certain circumstances, which means that the right of access will not apply to that land. Land which has been ploughed or drilled in the past 12 months, for instance, will not be available as coastal margin, although we made it clear in the draft paper on Section 3A of the CROW Act that we believe that it should be possible for the route to go through such land. We accept that the issue will not be the full coastal margin, but that a pathway may be constructed through with the agreement of the landowner.
However, it may still be sensible to revise the line of the route. Natural England will have full power to do that if there is a change in land use which results in these circumstances. In other circumstances, there may be land management reasons why public access will not be appropriate; for example, if land is needed for intensive grazing or lambing. In those circumstances, landowners can apply for exclusion or restriction of access to the land. Natural England may issue a direction if it is necessary for land management purposes. We recognise the point about land management. The restriction or exclusion in some of these circumstances might be for a very short period, in which case it will probably be most appropriate to agree to a temporary route under new Section 55I of the 1949 Act for use during this period. If the exclusion or restriction is long term, of course, a variation is more appropriate.
The Bill provides for that degree of flexibility, which we have discussed at some length today. I therefore hope that the noble Earl, Lord Cathcart, will feel that the issues he has raised, particularly those on change of agricultural use, are already considered fully in the Bill and that he will feel able to withdraw his amendment.
Amendment 124LA withdrawn.
Amendments 124M and 124N
124M: Clause 292, page 182, line 45, leave out “and 55E” and insert “, 55E and Schedule 1A and regulations under that Schedule”
124N: Clause 292, page 183, line 30, after “55I” insert “, Schedule 1A”
Amendments 124M and 124N agreed.
Amendment 124NA not moved.
Amendments 124P to 124R
124P: Clause 292, page 184, line 34, after “55I” insert “and Schedule 1A”
124Q: Clause 292, page 184, line 38, at end insert—
“(3) Any power conferred by sections 55A to 55I or Schedule 1A to make regulations includes—
(a) power to make different provision for different cases, and (b) power to make incidental, consequential, supplemental or transitional provision or savings.””
124R: Clause 292, page 184, line 38, at end insert—
“( ) After Schedule 1 to the 1949 Act insert the Schedule set out in Schedule (Schedule 1A to the 1949 Act) to this Act.”
Amendments 124P to 124R agreed.
Clause 293 : Access to the coastal margin
124S: Clause 293, page 186, leave out lines 36 to 40
Amendment 124S agreed.
124SA: Clause 293, page 186, line 40, at end insert—
“( ) No order may be made under subsection (1) providing for any land where there is an expectation of privacy to be excluded from any description of excepted land.”
My Lords, as I indicated earlier, I am particularly unhappy with the Minister’s response to this amendment. I still feel that the safeguard is necessary and will provide a valuable restraint on the use of this power. I therefore wish to test the opinion of the House.
124T: Clause 293, page 188, line 37, at end insert—
“( ) In section 20 (codes of conduct and other information)—
(a) in subsection (1), omit “and” at the end of paragraph (a) and after paragraph (b) insert “, and(c) that, in relation to access land which is coastal margin, the public are informed that the right conferred by section 2(1) does not affect any other right of access that may exist in relation to that land.”, and(b) after that subsection insert—“(1A) The duty imposed by subsection (1) to issue and revise a code of conduct may be discharged, in relation to access land which is coastal margin, by (or in part by) issuing and revising a separate code relating to such access land only.””
Amendment 124T agreed.
124TA: After Clause 293, insert the following new Clause—
“Access to the coastal margin (No. 2)
(1) Schedule 1 to the CROW Act (excepted land for purposes of Part 1) is amended as follows.
(2) After paragraph 13 insert—
“13A Saltmarshes and mudflats.””
My Lords, I have retabled this amendment because I felt that the debate on the group of amendments in Committee focused rather more on ports than on the separate concerns we had over salty marshes and mudflats. I hope that keeping the amendment on its own this time will ensure that the issues receive the attention they deserve. This is the type of shore with which I am personally most acquainted. Mudflats and salt marshes represent some of the most interesting and valuable habitats, as well as providing heroic scenery all of their own.
The particular safety concerns about salt marshes and mudflats appear to be understood, at least partly, by Natural England. Its draft scheme notes:
“The trail should not normally be aligned on flats and saltmarsh because there are usually safer, more convenient alternatives”.
We agree also with its note that such areas would also be unsuitable for coastal margin unless there is a specific recreational use for them.
It seems therefore to be fairly well established that, where arrangements are not already in place for the enjoyment of these areas, they are likely to be too unsafe or inconvenient to be opened up to wider public access. The danger posed by these areas is significant. I know that the noble Lord, Lord Greaves—I speak of him in his absence—feels that this route should also allow the public to take part in activities where there is an element of risk, but, unlike with rock climbing or similar popular sports, public awareness of the danger posed by intertidal zones is not so self-evident. Even experts are caught out by misjudgments of the tide.
Although I am glad to see that Natural England is prepared to put up warning signs where appropriate, does the Minister not feel that it would be best to add this category to the list of exceptions in the CROW Act? I beg to move.
My Lords, I am glad that the noble Lord has brought this matter back, because it allows me, I hope, to give him some reassurance. He speaks with great experience, and I fully accept that estuary salt marshes and mudflats are complex and varied environments. Natural England will take into account all circumstances when making decisions. Because of the issues that the noble Lord has raised, we intend that a Section 3A order, which we will introduce after the Bill has come into force to amend the CROW Act for coastal land, will introduce a new direction, enabling Natural England to exclude or restrict access to an area of salt marsh or mudflat if it is satisfied that the land is unsuitable for public access. I hope that this answers the point raised by the noble Lord, Lord Taylor.
This will enable each area to be considered on a case-by-case basis. As the noble Lord said, Natural England’s draft scheme already makes it clear that the route will not normally be positioned on mudflats and salt marshes, which will not normally be coastal margin unless Natural England considers them suitable for open-area recreation. However, where local communities have traditionally accessed mudflats for recreation, such access should be recognised. The proposals have therefore been designed to give the flexibility to enable this, while giving necessary protection to valuable habitats and wildlife. That is why we prefer to use an order rather than go down the route that the noble Lord’s amendment would take us.
There will of course be a public consultation on the proposed order, which is affirmative and will have to be debated and approved by both Houses. Once the right of access to coastal land is implemented, those with relevant interests as defined by Section 45 of the CROW Act will have the same rights as they do now for open country to apply for restrictions and exclusions of access for land management reasons, which can include management for shooting or the holding of commercial events. In those instances Natural England must issue a restriction or exclusion direction if it is necessary and access cannot be suitably managed in any other way. If the application is turned down, or a direction proposed by Natural England is not in accordance with the terms of the application, there is a right of appeal to the Planning Inspectorate under Section 30 of the CROW Act.
We agree with the noble Lord’s concerns, but we prefer the flexible approach of an order because there are situations where, for instance, local communities have traditionally accessed mudflats for recreation and we do not want to inhibit that. I hope that the noble Lord is reassured that, on the substance of what he is seeking to clarify, we believe that the new type of direction for Natural England will enable us to deal with access to areas of salt marsh or mudflat.
My Lords, as somebody who lives very close to salt marshes and mudflats, I say that the noble Lord, Lord Hunt, is right. They are not easily classifiable and need careful assessment by people who know about these things before a decision is made about how valuable a commodity they are. Like him, I do not think that there is a great deal to be said in favour of the amendment.
My Lords, I am sorry that the noble Lord, Lord Bridges, takes such a negative view of what was intended as a positive suggestion. However, I am grateful for the Minister’s response, which I found very reassuring. I am also reassured by the fact that Natural England is taking a great interest in this matter, and is aware of the risks both to the public and to habitat that might be occasioned by uninhibited access. I accept the Minister’s reassurance on the method of introduction of restrictions in the case of salt marshes and mudflats, and beg leave to withdraw my amendment.
Amendment 124TA withdrawn.
124U: Before Schedule 19, insert the following new Schedule—
“Schedule 1A to the 1949 ActThe following is the Schedule to be inserted as Schedule 1A to the National Parks and Access to the Countryside Act 1949 (c. 97)—
“SCHEDULE 1ACoastal access reportsIntroductory1 In this Schedule—
(a) “coastal access report” means a report submitted under section 51 pursuant to the coastal access duty;(b) references to a fair balance are references to a fair balance between—(i) the interests of the public in having rights of access over land, and(ii) the interests of any person with a relevant interest in the land,(to which section 287(3) of the Marine and Coastal Access Act 2009 (general duties in connection with the coastal access duty) refers).Advertising etc of coastal access reports2 (1) Natural England must—
(a) advertise a coastal access report, and (b) take such steps as are reasonable to give notice of the report to persons within sub-paragraph (2).(2) Those persons are—
(a) persons with a relevant interest in affected land;(b) each access authority for an area in which affected land is siutated;(c) each local access forum for an area in which affected land is situated;(d) the Historic Buildings and Monuments Commission for England;(e) the Environment Agency;(f) such other persons as may be specified in regulations made by the Secretary of State.(3) The Secretary of State may by regulations make provision about—
(a) the form and manner in which reports are to be advertised under sub-paragraph (1)(a);(b) the form and manner in which notices are to be given under sub-paragraph (1)(b);(c) the timing of any advertisement or the giving of any notice.Objections by persons with relevant interest in affected land3 (1) Any person who has a relevant interest in affected land may make an objection to Natural England about a coastal access report.
(2) For the purposes of this Schedule an objection is not an admissable objection unless it—
(a) satisfies the conditions in sub-paragraphs (3) and (4), and(b) is made in accordance with any requirements imposed by regulations under sub-paragraph (7)(b).(3) The first condition is that the objection is made on the ground that the proposals in the report, in such respects as are specified in the objection, fail to strike a fair balance as a result of one or more of the following—
(a) the position of any part of the proposed route;(b) the inclusion of proposals under subsection (2) of section 55B or the nature of any proposal under that subsection;(c) the inclusion of, or failure to include, an alternative route under section 55C(2) or the position of any such alternative route or any part of such a route;(d) the inclusion of, or failure to include, proposals under one or more of paragraphs (a) to (c) of section 55D(2) or the nature of any proposal made under such a paragraph;(e) the inclusion of, or failure to include, a proposal under section 55D(3) or the terms of any such proposal;(f) the exercise of a discretion conferred by section 291(2) or (3) of the Marine and Coastal Access Act 2009, or failure to exercise a discretion conferred by section 291(3) of that Act, in relation to a river.(4) The second condition is that the objection specifies the reasons why the person making the objection is of the opinion that a fair balance is not struck as a result of the matter or matters within sub-paragraph (3)(a) to (f).
(5) An objection under this paragraph may propose modifications of the proposals in the report if the person making the objection considers—
(a) that those modifications would remedy, or mitigate the effects of, the failure to strike a fair balance to which the objection relates, and(b) that the proposals as so modified would satisfy the requirements of sub-paragraph (6).(6) Modified proposals satisfy the requirements of this sub-paragaph if what they propose—
(a) is practicable,(b) takes account of the matters mentioned in section 287(2), and (where appropriate) section 291(4), of the Marine and Coastal Access Act 2009 (matters to which Natural England and the Secretary of State must have regard when discharging the coastal access duty), and(c) is in accordance with the scheme approved under section 288 of that Act (the scheme in accordance with which Natural England must act when discharging the coastal access duty) or, where that scheme has been revised, the revised scheme.(7) The Secretary of State may by regulations make provision about—
(a) the steps to be taken by Natural England to make persons with an interest in affected land aware of their entitlement to make objections under this paragraph;(b) the form and manner in which, and period within which, objections are to be made.Referral of objections to the appointed person4 (1) Natural England must send to the Secretary of State a copy of any objection received under paragraph 3 about a coastal access report.
(2) The Secretary of State must refer any objection received under sub-paragraph (1) to a person appointed by the Secretary of State for the purposes of this Schedule (“the appointed person”).
(3) An appointment under sub-paragraph (2)—
(a) must be in writing;(b) may relate to any particular objection specified in the appointment or to objections of a description so specified;(c) may provide for a payment or payments to be made to the appointed person.(4) An appointment under sub-paragraph (2) may, by notice in writing given to the appointed person, be revoked at any time by the Secretary of State in respect of any objection if the appointed person has not, before that time, given the Secretary of State a report containing a recommendation under paragraph 11 in relation to the objection.
(5) Where the appointment of the appointed person is revoked in respect of any objection, the Secretary of State must appoint another person under sub-paragraph (2) to deal with the objection afresh under this Schedule.
(6) Nothing in sub-paragraph (5) requires any person to be given an opportunity to make fresh representations or comments or to modify or withdraw any representations or comments already made.
Determination of admissibility of objections5 Where an objection is referred under paragraph 4(2), the appointed person must—
(a) determine whether the objection is an admissible objection, and(b) give notice of that determination, together with the reasons for it, to—(i) the person who made the objection,(ii) the Secretary of State, and(iii) Natural England.Admissable objections6 (1) Where Natural England is notified under paragraph 5(b) that an objection is an admissible objection, it must send to the Secretary of State its comments on the objection.
(2) A notice under paragraph 5(b) that an objection is an admissible objection may require Natural England to include in its comments under sub-paragraph (1)—
(a) either—(i) an outline of any relevant alternative modifications of the proposals in the coastal access report, or (ii) if Natural England considers there are no such modifications, a statement to that effect;(b) if an outline is included under paragraph (a)(i), an assessment of the effects of the relevant alternative modifications on the interests of the public in having rights of access over land and the interests of any person with a relevant interest in affected land;(c) either—(i) an outline of any relevant rejected proposals which were considered by Natural England in connection with the preparation of the coastal access report and of its reasons for rejecting them, or(ii) if there are no such proposals, a statement to that effect;(d) information of such other description as the appointed person may specify in the notice under paragraph 5(b), being information which the appointed person considers to be material for the purpose of making a determination under paragraph 10(2).(3) In this paragraph, a reference to relevant alternative modifications of the proposals is to modifications of the proposals which Natural England considers—
(a) might reasonably be regarded as relevant for the purpose of determining—(i) whether, in the respects identified in the objection, the proposals in the report strike a fair balance, or(ii) whether any modification of those proposals would produce proposals that strike a fair balance or mitigate the effects of any failure to strike a fair balance,(b) are materially different from any modifications included in the objection under paragraph 3(5), and(c) would, if made, result in proposals which satisfy the requirements of paragraph 3(6)(a) and (c).(4) In this paragraph, a reference to relevant rejected proposals is to proposals which, if to be given effect to, would require modifications to be made of the proposals in the coastal access report which—
(a) are materially different from—(i) any modifications included in the objection under paragraph 3(5), and(ii) any relevant alternative modifications outlined in Natural England’s comments on the objection, and(b) would be relevant alternative modifications but for a failure to satisfy the requirement of paragraph 3(6)(a).Representations about reports7 (1) Representations about a coastal access report may be made by any person to Natural England.
(2) The Secretary of State may by regulations make provision about—
(a) the steps to be taken by Natural England to make persons aware of their entitlement to make representations under this paragraph;(b) the form and manner in which, and period within which, representations are to be made.8 (1) Natural England must send to the Secretary of State—
(a) a copy of any representations made by a person within paragraph 2(2)(b) to (f) about a coastal access report,(b) a summary of any other representations made about the report, and(c) Natural England’s comments on representations within paragraph (a) or (b).(2) In this paragraph references to representations are to representations made under paragraph 7 in accordance with any requirements imposed by regulations under paragraph 7(2)(b).
Reference of objection to the appointed person9 (1) This paragraph applies where the Secretary of State is notified under paragraph 5(b) that an objection made about a coastal access report is an admissible objection.
(2) The Secretary of State must send to the appointed person the relevant documents in relation to the objection.
(3) The relevant documents are—
(a) a copy of the coastal access report to which the objection relates,(b) a copy of Natural England’s comments on the objection received under paragraph 6,(c) a copy of any representations received under paragraph 8(1)(a) about the coastal access report, so far as those representations appear to the Secretary of State to be relevant to the objection,(d) if there are such representations, a copy of Natural England’s comments on them received under paragraph 8(1)(c),(e) if a summary of representations about the coastal access report has been received under paragraph 8(1)(b), a copy of any part of the summary which appears to the Secretary of State to be relevant to the objection, and(f) if there is such a part, a copy of Natural England’s comments on the representations to which the part relates received under paragraph 8(1)(c).Consideration of objections by appointed person10 (1) This paragraph applies where the appointed person—
(a) has determined that an objection about a coastal access report is an admissible objection, and(b) has received, under paragraph 9, the relevant documents in relation to the objection.(2) The appointed person must determine whether the proposals set out in the report fail, in the respects specified in the objection, to strike a fair balance as a result of the matter or matters within paragraph 3(3)(a) to (f) specified in the objection.
(3) If the appointed person is minded to determine that the proposals fail to strike a fair balance, the appointed person must comply with sub-paragraphs (4) and (5) before making such a determination.
(4) The appointed person must publish a notice containing—
(a) details of the objection and Natural England’s comments on it under paragraph 6,(b) a statement that the appointed person is minded to determine that the proposals fail to strike a fair balance, and(c) an invitation to submit to the appointed person representations about—(i) the objection (including any modifications of the proposals proposed by the objection),(ii) any relevant alternative modifications contained in Natural England’s comments on the objection under paragraph 6, and(iii) any observations which the appointed person has made in the notice regarding any such relevant alternative modifications or any modifications proposed by the objection.(5) The appointed person must give a copy of that notice to—
(a) Natural England;(b) any person with a relevant interest in—(i) affected land to which the objection relates, or(ii) land which is not affected land but would be such land if any of the modifications referred to in sub-paragraph (4)(c)(i) or (ii) were made to the proposals;(c) any person within paragraph 2(2)(b) to (f). (6) The Secretary of State may by regulations make provision about—
(a) the form and manner in which notices are to be published or given under this paragraph,(b) the timing of the publication or giving of notices under this paragraph, and(c) the form and manner in which, and period within which, representations are to be made in response to an invitation in a notice under this paragraph.(7) The appointed person may require the Secretary of State, at the Secretary of State’s expense—
(a) to discharge the appointed person’s duty to publish or give a notice under this paragraph;(b) to receive on behalf of the appointed person any representations made in response to an invitation in a notice under this paragraph and forward such representations to the appointed person.Recommendations of the appointed person11 (1) Where a determination is made in respect of an objection under paragraph 10(2), the appointed person must give the Secretary of State a report which—
(a) sets out that determination, and(b) makes one or more recommendations in accordance with this paragraph.(2) Sub-paragraph (3) applies if the appointed person concludes under paragraph 10(2) that the proposals do not fail, in the respects specified in the objection, to strike a fair balance as a result of any of the matters within paragraph 3(3)(a) to (f) specified in the objection.
(3) The appointed person must recommend that the Secretary of State makes a determination to that effect.
(4) Sub-paragraphs (5) and (7) apply if the appointed person concludes that the proposals fail, in the respects (or certain of the respects) specified in the objection, to strike a fair balance as a result of one or more of the matters within paragraph 3(3)(a) to (f) specified in the objection.
(5) The appointed person must determine whether there are any modifications of the proposals which would meet the coastal access requirements.
(6) For the purposes of this paragraph, modifications meet the coastal access requirements if they—
(a) remedy the failure to strike a fair balance identified by the objection, and(b) produce proposals which satisfy the requirements of paragraph 3(6).(7) The appointed person must—
(a) recommend that the Secretary of State determines that the proposals fail, in one or more of the respects specified in the objection, to strike a fair balance but that there is no modification which would satisfy the coastal access requirements,(b) recommend that, if minded to approve the proposals, the Secretary of State approves the proposals with modifications of a kind described in the recommendation, being modifications which the appointed person considers would meet the coastal access requirements, or(c) recommend that, if minded to approve the proposals, the Secretary of State considers whether modifications of a kind described in the recommendation would meet the coastal access requirements.(8) Where a report contains a recommendation under sub-paragraph (7)(a), the appointed person may include in the report—
(a) a recommendation that, if minded to approve the proposals, the Secretary of State should approve the proposals with modifications of a kind described in the recommendation, being modifications which the appointed person considers would mitigate the effects of the failure to strike a fair balance, or (b) a recommendation that, if minded to approve the proposals, the Secretary of State should consider whether modifications of a kind described in the recommendation would mitigate the effects of the failure to strike a fair balance.(9) Sub-paragraph (10) applies where, in a case to which sub-paragraph (4) applies, the appointed person also determines that the proposals do not fail, in the respects (or certain of the respects) specified in the objection, to strike a fair balance by reason of one or more of the matters within paragraph 3(3)(a) to (f) specified in the objection.
(10) The appointed person must recommend that the Secretary of State makes a determination to that effect (in addition to any recommendation under sub-paragraph (7) or (8)).
(11) A report under this paragraph must also set out the appointed person’s reasons for any recommendation contained in the report.
Information and documents12 (1) The appointed person may give Natural England a notice requiring it to provide the appointed person with information or documents—
(a) which is or are in the possession of Natural England, and(b) which the appointed person reasonably requires for the purpose of exercising functions under this Schedule.(2) Natural England must send the Secretary of State a copy of any information or document provided by it in response to a notice under sub-paragraph (1).
(3) The appointed person may give the Secretary of State a notice requiring the Secretary of State to provide the appointed person with—
(a) a copy of any coastal access report specified in the notice which the appointed person reasonably requires for the purpose of exercising functions under this Schedule;(b) any information in the possession of the Secretary of State which the appointed person reasonably so requires.Holding of local inquiries and other hearings by appointed person13 (1) Where the appointed person considers it necessary or expedient to do so, the appointed person may hold a local inquiry or other hearing in connection with the consideration of an objection under this Schedule.
(2) Subject to sub-paragraph (3), the costs of a local inquiry or other hearing held under this paragraph are to be defrayed by the Secretary of State.
(3) Subsections (2) to (5) of section 250 of the Local Government Act 1972 (local inquiries: evidence and costs) apply to local inquiries or other hearings held under this Schedule by the appointed person as they apply to inquiries caused to be held under that section by a Minister, but as if—
(a) in subsection (2) (evidence) the reference to the person appointed to hold the inquiry were a reference to the appointed person,(b) in subsection (4) (recovery of costs of holding the inquiry)—(i) references to the Minister causing the inquiry to be held were references to the appointed person, and(ii) references to a local authority were references to Natural England, and(c) in subsection (5) (orders as to the costs of the parties) the reference to the Minister causing the inquiry to be held were a reference to the appointed person.Supplementary provision about procedure in connection with objections14 (1) Subject to the provisions of this Schedule, the Secretary of State may, by regulations, make provision about the consideration of objections by the appointed person.
(2) Such regulations may, in particular, include—
(a) provision enabling two or more objections, in the circumstances specified in the regulations, to be considered by the appointed person together;(b) provision enabling the appointed person to conduct an inspection of any land;(c) provision about the procedure for the conduct of local inquiries and other hearings.Preliminary consultation15 (1) The Secretary of State may, by regulations, make provision about the procedure to be followed where, before determining whether or not to approve the proposals in a coastal access report (with or without modifications), the Secretary of State wishes—
(a) to identify or investigate possible modifications of the proposals to which it might be appropriate to give further consideration, and(b) to consult persons for the purposes of identifying or investigating such modifications.(2) Regulations under this paragraph may, in particular, apply any provision of this Schedule (with or without modifications).
Determinations under section 5216 (1) Before making a determination under section 52 in respect of a coastal access report, the Secretary of State must consider—
(a) any objection about the report which the appointed person has determined is an admissible objection,(b) Natural England’s comments under paragraph 6 on any such objections,(c) any report under paragraph 11 in respect of any such objection,(d) any representations made about the coastal access report, or summary of such representations, and any comments on those representations, received under paragraph 8, and(e) any information or document a copy of which is sent to the Secretary of State under paragraph 12(2).(2) The power under section 52 to approve proposals contained in a report submitted under section 51 pursuant to the coastal access duty includes a power to approve those proposals (with or without modifications) so far as they relate to one or more parts of the route only, and reject the remaining proposals.
(3) The Secretary of State may, by regulations, make provision about the procedure to be followed where the Secretary of State is minded to approve proposals with modifications other than modifications made in accordance with a recommendation under paragraph 11(7)(b) or (c) or (8)(a) or (b).
(4) For the purposes of sub-paragraph (3) a modification is to be regarded as made in accordance with a recommendation under paragraph 11(7)(b) or (c) or (8)(a) or (b) if it is not materially different from a modification which could be so made.
(5) Regulations under sub-paragraph (3) may, in particular, apply any provision of this Schedule (with or without modifications).
(6) Any requirement imposed by virtue of sub-paragraph (3) is in addition to the duty to consult imposed by section 52(1).
Notice of determinations under section 5217 (1) Where the Secretary of State makes a determination under section 52 in respect of a coastal access report, the Secretary of State must, as soon as reasonably practicable, comply with this paragraph.
(2) The Secretary of State must—
(a) take reasonable steps to give notice of the determination to persons with a relevant interest in affected land, or(b) if the Secretary of State considers it appropriate, publish a notice of the determination in such manner as the Secretary of State considers likely to bring it to the attention of those persons.(3) The Secretary of State (in addition to complying with section 52(2)) must give notice of the determination to—
(a) any body of a kind mentioned in section 52(2) in whose Park or area affected land is situated (but which is not required to be notified under section 52(2)),(b) any London borough council for an area in which affected land is situated,(c) any local access forum for an area in which affected land is situated,(d) the Historic Buildings and Monuments Commission for England, and(e) the Environment Agency(4) Where the Secretary of State was required under paragraph 16(1)(a) to consider an objection when making the determination, a statement of the reasons for the determination (so far as relevant to the objection) must be included in—
(a) any notice given or published under sub-paragraph (2),(b) any notification of the determination under section 52(2), and(c) any notice given under sub-paragraph (3).Interpretation18 In this Schedule—
“admissible objection” is to be construed in accordance with paragraph 3(2);
“the appointed person” has the meaning given by paragraph 4(2);
“coastal access report” has the meaning given by paragraph 1(a);
“fair balance” is to be construed in accordance with paragraph 1(b);
“relevant alternative modifications” has the meaning given by paragraph 6(3);
“the relevant documents”, in relation to an objection, has the meaning given by paragraph 9(3).””
Amendments 124V to 124AH (to Amendment 124U) not moved.
Amendment 124U agreed.
Schedule 20 : Amendments of the Harbours Act 1964
Amendments 125 and 126
125: Schedule 20, page 292, line 30, leave out “repeals or amends” and insert “makes provision repealing or amending”
126: Schedule 20, page 293, line 7, leave out “repeals or amends” and insert “makes provision repealing or amending”
Amendments 125 and 126 agreed.
Schedule 21 : Repeals
Amendments 126A and 126AA
126A: Schedule 21, page 297, line 20, at end insert—
“Government of Wales Act 2006 (c. 32) In Schedule 3, paragraph 4(1)(a).”
“Government of Wales Act 2006 (c. 32)
In Schedule 3, paragraph 4(1)(a).”
126AA: Schedule 21, page 303, line 14, at end insert—
“In section 20(1), the word “and” at the end of paragaph (a).”
“In section 20(1), the word “and” at the end of paragaph (a).”
Amendments 126A and 126AA agreed.
Clause 312 : Interpretation
126B: Clause 312, page 208, line 29, leave out from second “of” to end of line 31 and insert “any of the following—
(a) Part 11 of the Town and Country Planning Act 1990 (c. 8);(b) Part 10 of the Town and Country Planning (Scotland) Act 1997 (c. 8);(c) the Planning (Northern Ireland) Order 1991 (S.I. 1991/1220 (N.I. 11)).”
Amendment 126B agreed.
Clause 313 : Extent
126C: Clause 313, page 209, line 37, leave out “amendments to the Fishery Limits Act 1976 (c. 86)” and insert “paragraph 2 of Schedule 4”
Amendment 126C agreed.
126D: Clause 313, page 210, line 35, after “Majesty” insert “following consultation with governments of each territory in question”
My Lords, I shall speak also to Amendments 127 to 129. In one of the documents circulated as we prepared for this Bill was a very helpful map of who was responsible for which part of the coastal waters around the United Kingdom. In the middle of the Irish Sea was a large, white hole. The purpose of this amendment is to explore the nature of this large, white hole, because it represents not only the coastal waters of the Isle of Man but also a gap in the application of this Act and many others, which seems to be a matter of considerable ambiguity.
As the Minister will know, I have wider interests in the extent clause and in the whole relationship between the British Government, the Crown dependencies and the overseas territories. A responsible Minister from this House described the constitutional relationship to a Commons committee last December as one which includes considerable ambiguity. That ambiguity may be useful for some purposes, but when, for example, it comes to the duty of Her Majesty's Government when signing international conventions on behalf of all UK territories to implement the obligations that are taken on, the quality of the extent clause leaves a great many questions.
I take as an example Clause 313(8), which lists some of the Crown dependencies and some of the overseas territories but does not list others. It lists Jersey but not Guernsey or the Isle of Man; it lists the Falklands, South Georgia and the Sandwich Islands, but not the Chagos archipelago, Gibraltar or the sovereign base areas of Cyprus. Perhaps the Minister can explain why some are listed and others are not. Was it an accident and an oversight, or is there an unseen rationale in government policy of which we are perhaps not fully aware?
Part of my concern is the capacity of these very small territories to implement what they are asked to do. It has, after all, been a settled policy of British Governments of both the major parties during the past 20 years to assume that any local authority with a population of less than half a million is incapable of implementing proper legislation. We are talking here about a range of authorities all of which have populations of less than 100,000—some, after all, have 20,000 or 30,000. They simply lack the staff, the ability and, in some cases, the competence to begin to implement what is asked of them. Anyone who has read the recent government report on the quality of governance in the Turks and Caicos Islands will know exactly what I mean when I talk about competence and ability.
There is then the question of who is in charge in Whitehall. I must thank the Minister for allowing me to meet a number of officials to discuss the matter. However, I gained the impression that there is a settled reluctance across Whitehall to address an issue which to several departments is marginal and where it is unclear which department is in charge.
One of several briefings that we received on this issue points out that there is an interdepartmental ministerial group on biodiversity, which is responsible for ensuring that biodiversity in the Crown dependencies and overseas territories is considered. It brings together representatives of four departments—the Foreign Office, Defra, DfID and, for some reason, DCMS, but it has not met for nearly two years. It was due to meet in January, and I hope that the Minister will be able to tell me whether it has met since January to consider this important issue. If it has not met for over two years, the Government are leaving an even larger hole in this important area than we had expected.
Biodiversity, after all, is an important issue for many of our overseas territories. This morning I received a note from Simon Hughes, my colleague in the other place, who is campaigning for the European elections in Gibraltar on Friday. As Ministers will know, one of the many oddities, ambiguities and absurdities of our Crown dependencies and overseas territories is that although the Gibraltarians get to vote in European elections by their choice, the people in the Isle of Man, Jersey and Guernsey decided that they did not want to—so some are in while others are out. Simon Hughes has discovered that Gibraltar is,
“really important as a bottleneck site for migratory species between Europe and Africa, particularly raptors”,
such as the,
“Egyptian vulture, Black kite, European Honey Buzzard, Montagu’s Harrier”,
and lesser kestrels. I am sure that the Minister could recognise all of those through his binoculars with no problem at all.
The Environmental Audit Committee report on halting biodiversity loss in November last year concluded:
“The government has a clear moral and legal duty to help protect the biodiversity of the UK Overseas Territories and Crown Dependencies”.
The Royal Society for the Protection of Birds points out that Her Majesty's Government currently allocate some £2 million for biodiversity protection to all of this rather long list of Crown dependencies and overseas territories. In the Chagos Islands, which include Aldabra, the British Antarctic territories, as well as St Helena and Ascension Island, we are talking about territories that are particularly important for bird species and for coastal and marine wildlife.
There are a large number of questions here, which I know that the Government would prefer not to have to answer—but that is part of the reason why I wish to pose them. We are assured that the Government will consult these dependent territories and their small Governments on whether they might like to implement some of these obligations. What form will that consultation take? Is there an expectation, since the Government have already signed up to international conventions covering these issues, that implementation will follow? What happens if Crown dependencies and overseas territories decide not to implement obligations to which Her Majesty's Government have signed up in international conventions? Do we simply accept that? Do we have to go back to any of the international organisations to which we belong and explain that we have no authority to force them to implement it? It would be a little easier if we understood some of the informal mechanisms so beloved of the British unwritten constitution.
The Royal Society for the Protection of Birds says that the approach,
“reflects the low priority the Government gives to the Territories”,
as a whole, and particularly with regard to biodiversity. Which is the lead department for biodiversity conservation of the territories—or is it not clear which it is? Do the Government intend to take on board the recommendation in the Foreign Affairs Committee inquiry about providing increased and adequate resources for biodiversity conservation, which was also reinforced by the Environmental Audit Committee? Why were some but not others listed in the extent clause? If the Minister can assure us on those questions, we will not have to divide the House or be more of a nuisance on later occasions. I beg to move.
My Lords, I had not intended to speak to this set of amendments, but as we have reached the Turks and Caicos Islands much more quickly than noble Lords might have expected, I shall take this opportunity to thank the noble Lord, Lord Saltaire, for raising some very interesting questions and proposing amendments which seek to extend the scope of the Bill to the oceans of the world; the Minister and his officials for the way in which they have facilitated a most productive Report stage; and indeed other noble Lords for their support. In particular, I thank the noble Lord, Lord Greaves, whose absence today has been noticed by us all and may account for the speed—but it may not be so; it cannot be so—with which we find ourselves here. I thank my noble friends on these Benches for playing their role. I shall be very interested in the Minister’s response to these amendments.
My Lords, as the noble Lord has taken the opportunity to thank the Ministers and their team, I should like to mention again the enormous help that we have received. My noble friend Lord Wallace has just reminded me that my noble friend Lord Shutt recently paid a visit to St Helena and came back with some very interesting information on what happens there. We sincerely—I am sure that I speak not only for my noble friend Lady Hamwee but also for my noble friend Lord Greaves from his sick bed—give our thanks for the hard work that has been done by all during the lengthy process of the Bill.
My Lords, I am most grateful to the noble Lord, Lord Livsey. I echo the comments made about the Bill team and the way in which it has responded, which has been excellent and has helped us to reach what has generally been a consensual approach to the Bill. As I said earlier, that provides a good foundation for what we all wish to achieve, not only in the marine environment but also in relation to coastal access provisions.
The noble Lord, Lord Wallace, has raised this matter in relation to a number of Bills. While I am not sure that I can promise him anything new, I can promise him consistency in the Government’s approach and response. I know that he is rather wary of our unwritten constitution and conventions. He is right that the constitutional relationship between the Crown dependencies and the UK is not enshrined in a formal constitutional document or in statute; rather it is the outcome of historical processes and accepted practice.
On the Crown dependencies, the islands are not part of the UK and therefore have no representation in Parliament at Westminster. They are internally self-governing dependencies of the Crown included in the term “British islands”. The Crown dependencies have never been colonies of England or the UK, nor are they overseas territories, which have a different relationship with the UK. They are fully functioning parliamentary democracies. Constitutionally, the UK Government have a considerable role; they are responsible for the defence of the islands and for their international relations.
The Crown is responsible for the good government of the islands as Crown dependencies. The Crown acts through the Privy Council on the recommendation of UK government Ministers in their capacity as privy counsellors, so the Crown’s powers over the islands are, in effect, exercised by the UK Government.
The Channel Islands legislatures pass primary legislation which requires approval by the Queen in Council. The Isle of Man Lieutenant Governor, subject to the consent of the Secretary of State for Constitutional Affairs and the Lord Chancellor, grants Royal Assent to most primary legislation dealing with domestic matters passed by the island’s legislature. In the case of a minority of Bills, primarily those affecting the role and responsibilities of the Lieutenant Governor, Royal Assent is reserved to the Queen in Council. All the Crown dependencies have their own legislatures. The UK Government also have the power to legislate for the islands. However, the UK respects the islands’ rights to autonomy in their domestic affairs and it would be contrary to constitutional convention to exercise the power to legislate for them in these areas in all but the most exceptional circumstances.
The UK’s relationship with overseas territories is based on partnership, shared values and the right of each territory to determine whether it wishes to retain the link to the UK. When seeking to extend the effect of UK legislation to the overseas territories, we would normally do so through consultation with them. The specific circumstances, diversity and remote location of many of the territories mean that UK legislation may not always be appropriate. Moreover, implementation of the law and creation of relevant local bodies would be extremely difficult without the co-operation of the territory concerned.
I know that the noble Lord, Lord Wallace, has concerns about the constitutional relationship. On the Crown dependencies—and the noble Lord knows this—the relationship was last examined by a royal commission on the constitution, which was appointed in April 1969. The commission issued its report, referred to as the Kilbrandon report, in 1973. The terms of reference of the commission were to,
“examine the present functions of the central legislature and government in relation to the several countries, nations and regions of the United Kingdom; and to consider, having regard to developments in local government organisation and in the administrative and other relationships between the various parts of the United Kingdom, and to the interests of the prosperity and good government of Our people under the Crown, whether any changes are desirable in those functions or otherwise in present constitutional and economic relationships; and to consider also, whether any changes are desirable in the constitutional and economic relationships between the United Kingdom and the Channel Islands and the Isle of Man”.
The commission received and examined evidence about the relationship from the authorities in the islands and from organisations and individuals who responded to an open invitation. As the noble Lord mentioned, it acknowledged that there were areas of uncertainty in the existing relationship, which was itself complex. It did not, however, purport to draw up a fully authoritative statement as to that relationship. It noted the following conclusion in relation to the constitutional relationship between the Crown dependencies and the UK:
“We have been impressed by the virtual unanimity of opinion in the evidence submitted to us in favour of maintaining the existing constitutional relationships, either without change or furnished with additional defences against encroachment on the Islands’ autonomy”.
On 13 January 2009, my right honourable friend Mr Michael Wills replied to a Question raised by Dr Kumar on this matter in the other place. He was asked what the Government’s policy is on the future constitutional relationship between the UK and the Crown dependencies. Mr Wills confirmed:
“There are no plans for change to the constitutional relationship between the UK and the Crown dependencies”.—[Official Report, Commons, 14/1/09; col. 810W.]
Coming to the substance of the issue in relation to the Bill, I assure noble Lords that the Crown dependencies and the overseas territories have been fully consulted on the extent of the Bill and have been given every opportunity to request order-making powers in respect of all the provisions of the Bill. The outcome of these is reflected in Clause 313. On the noble Lord’s question of why only certain of the Bill’s provisions apply to certain Crown dependencies and overseas territories, I have answered implicitly. UK legislation is not normally extended to overseas territories and the Crown dependencies without their consent. In general, we seek to extend the effect of UK legislation through consultation with them. Therefore, the Bill as drafted reflects the outcome of consultations with the Crown dependencies and the overseas territories on the extent of the Bill and the specific order-making power included in it. Marine licensing is the most relevant part of the Bill applicable to the Crown dependencies and overseas territories. Following consultation, certain islands and overseas territories are listed but others are not, as the listed ones had requested that they be part of the Bill. That is the reason for that.
My Lords, I apologise for interrupting. There is the question of UK legislation, but there is also the question of the growing amount of international law and treaties on this issue. In 1973—some 35 years ago—when the Kilbrandon commission report was produced, international law on the sea, on maritime conservation and on the exploitation of marine resources was far less developed than it is now. So it is not purely a matter of extending UK legislation; it its about Her Majesty’s Government being caught in the middle between signing up to international law and then apparently not ensuring that those international measures are implemented in substantial areas of the sea that come under British sovereignty.
My Lords, the noble Lord raises an important matter. He is right that under international law the UK is responsible for our treaty obligations undertaken in respect of the territories. There is no disagreement with him on that at all. Before a treaty can be extended to an overseas territory, the UK must be satisfied that the treaty obligations can be fulfilled by the territory. Consultation with territories regarding the extension of a treaty is clearly a matter of good policy and administration. Under international law, we are ultimately responsible for the due performance of treaty obligations undertaken in respect of the territories. I do not have an argument with the noble Lord in that respect. However, that is rather different from saying that the provisions of the Bill need to be reflected as regards the Crown dependencies and the overseas territories. I do not think that we can pull it all together and say that, given the requirements of international treaty organisations, the Bill is defective in relation to those territories and dependencies. We could not allow the legislation to do that.
The noble Lord also asked me about responsibility and the interdepartmental group. Alas, I have made inquiries about when the group last met but I am afraid that I have not yet found out. However, he can be assured that we will find out and I will let him have that information as soon as possible. I am sure that we are all eager to know. As regards departmental responsibility, the Foreign and Commonwealth Office is, not surprisingly, the lead department for overseas territories. The Ministry of Justice is the lead department for the Crown dependencies. Indeed, I think that my noble friend Lord Bach is the Minister responsible. I am sure that he wishes that he were present to answer the noble Lord’s questions on this fascinating matter. However, I shall ensure that my noble friend is aware of what we have discussed. Clearly, these are interesting issues.
My department, Defra, has an interest in biodiversity as the lead department on that in the UK. Other departments have relevant interests. The Department for International Development clearly has an interest in these matters. I am sure that DCMS is included due to maritime heritage issues. The noble Lord will recall that my noble friends and the noble Baroness who debated this issue were ever anxious for DCMS to produce a Bill on that basis.
On the problem of what I think can be called the white space—I think that the noble Lord was referring to the Isle of Man, but he could have referred to the Channel Islands—whatever the constitutional arrangements are, it is important that as far as possible there is an integrated approach between the UK Government, the devolved Administrations and the Crown dependencies. I hope that I can reassure him on this basis, because, first of all, we engage regularly with the Isle of Man, Jersey and Guernsey on relevant marine environmental issues. The Isle of Man supported much of the Bill and will be bringing forward its own legislative proposals in due course. It is undertaking a three-year project to designate the first marine nature reserve in Manx waters and aims to implement the first site by 2011.
I also understand that the Isle of Man Administration have been involved in projects to ensure a consistent and co-ordinated approach to marine management across the Irish Sea. The Isle of Man, Jersey and Guernsey are part of the British-Irish Council subgroup on integrated coastal zone management. I had the honour to chair a meeting of Environment Ministers at the British-Irish Council in Jersey only a few weeks ago, where we discussed the marine Bill and our determination to ensure a consistent approach. A group has been set up to discuss and share best practice examples of individual approaches to marine and coastal management. Ireland also welcomed the close co-operation that exists through the British-Irish Council subgroup. The Ministers of the council are updated on the progress of individual countries’ marine and coastal strategies.
In a sense, we go back to the issue that we discussed for many hours on how the Bill will relate to the different Administrations within the UK. Just as I have been reassured by the discussions between the devolved Administrations that there is a determination to make this work as well as possible in the context of the devolution settlement, I am also satisfied from the discussions that I have taken part in that, as far as the Crown dependencies are concerned, there is also a mutual understanding and determination to make this work effectively.
On the issue of consultation raised by Amendment 126D, the advice that the Government have received is that it would be inappropriate to include wording of this nature in such a provision, as it would, to our knowledge, be unprecedented and would set a bad precedent for future legislation. We believe that it would be inappropriate for Her Majesty’s powers to be fettered in this way, although of course it is, where possible, our policy and practice to consult the Crown dependencies and overseas territories before legislating for them. The Bill contains a standard clause that reflects the constitutional relationship that is accepted by the Crown dependencies and the overseas territories.
In conclusion, I know that the noble Lord has concerns, but the Government’s view is that the arrangements by and large work well and that it is better to work through consensus and consultation, which also seem to work well. Nothing detracts from the UK’s treaty responsibilities. I know that the noble Lord has an energetic campaign going on this issue, but overall I believe that the Bill is consistent with the known and understood relationship between the UK, the Crown dependencies and the British Overseas Territories. I am also satisfied that we will achieve an integrated approach, particularly in relation to the Crown dependencies, where such an approach to marine environment issues and fisheries regulation is so important.
My Lords, I thank the Minister for that interesting and informative reply, some of which requires further study and thought. It ranged all the way from the nature of the royal prerogative through Orders in Council to how to deal with wrecks in disputed waters. I look forward to the next occasion when a wreck is discovered just off Gibraltar, and the Spanish, Gibraltarians and Moroccans dispute exactly who is responsible for raising it. There are a whole range of areas to be covered.
My concern, as the Minister will know, is that historical processes do not entirely move at the speed at which we are now having to deal with marine resources intergovernmentally and globally in terms of international law. When I first raised the question of the Crown dependencies some years ago, a group of executive officers of the Government of Jersey came to see me. Their opening question was whether I understood what the Duke of Normandy had promised the Channel Islands in 1204. However, the world has moved on since 1204 and we are dealing with rather different problems. Indeed, we are dealing with very different problems from the ones that we had in the 1970s. I mark that as important because we will find ourselves coming back to climate change, marine pollution and a whole set of other problems in an area in which Her Majesty’s Government, for historical reasons, find that they are responsible for large parts of the world’s marine territories. I thank the Minister for that lengthy and useful reply, but it raised a number of questions that many of us will want to explore further on other occasions. I beg leave to withdraw the amendment.
Amendment 126D withdrawn.
Amendments 127 to 129 not moved.
130: Clause 313, page 211, line 6, at end insert—
“( ) paragraph 2 of Schedule 4 (amendments to the Fishery Limits Act 1976 (c. 86)),”
Amendment 130 agreed.