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Lord Marlesford: Before the noble Baroness leaves that point, is there provision in the Bill for it to be so treated? Alternatively, is it merely based on the fact that the noble Baroness states that from the Dispatch Box and the courts will have to take note of what she says? I should be happier if the provision were on the face of the Bill.

11.45 p.m.

Baroness Farrington of Ribbleton: I understand that the Bill as drafted deals with the matter in the way that the noble Lord seeks. Were I to be wrong, I should write to the noble Lord and confirm the details. But that is my understanding.

Amendment No. 104 covers a number of activities which fall within the scope of the new restriction in paragraph 1(d) relating to the commission of any criminal offence. Removal of minerals, soil, peat or part of the land or anything on it would generally be a criminal offence. Even where the landowner did not wish to press charges or seek the assistance of the police, the user would still lose the right of access and may be rendered a trespasser.

The noble Lord, Lord Jopling, and the noble Lord, Lord Greaves, referred to the issue of limestone pavements. It is important to remember that such action would be theft. There could be a direction excluding access or a by-law to deal with the issue. There is specific protection for limestone pavements through orders that can be made under the Wildlife and Countryside Act 1981. Clause 69 increases the maximum fine to £20,000.

Amendment No. 105, would cover anyone who left any item, regardless of whether they intended to return to it. I understand the gravity of the problem of litter, both visually and in terms of danger to livestock, but I do not believe that those who tabled the amendment would want it to go so far as to prevent people leaving a heavy rucksack so that they could climb to an access point or to cause someone to lose the right of access if they returned for a thermos flask, for example, which they had left behind.

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The offence of leaving litter under the Environmental Protection Act 1990 will apply to access land, which will be treated as public open space for that purpose. We shall return to that on a later amendment.

Amendment No. 106 would add the taking on to land of solvents with the intention to inhale. I have been closely involved with the education service for many years and I understand the concern raised by the noble Lord, Lord Glentoran. The abuse of solvents is not a criminal offence, but on access land it might well be in breach of existing regulations on conduct likely to disturb or annoy others engaged in legitimate activities on the land.

Paragraph (1)(o) restricts the intimidation or obstruction of persons engaged in any lawful activity on access land. Amendments Nos. 116 and 117 would omit any reference to "persons" in that restriction. I can only assume that the intention of the amendments is to make certain that activities such as the setting of traps for vermin are included, even though the person involved may not be present at all times. However, I am assured and can therefore assure your Lordships, that the restriction will cover such activities, even if the person is at the time sitting at home hoping that the trap will spring while they are watching television.

The noble Duke, the Duke of Montrose, referred to military training. Troops who engage in outdoor recreation for their own amusement or pleasure will be able to exercise their right of access. However, we believe that military training would not fall within the category of open-air recreation and so could not be undertaken within the right of access. The Secretary of State for Defence will continue to negotiate with landowners for permission to use land for military training.

We have considered carefully which activities should be included in Schedule 2. It is important that the restrictions are straightforward and appropriate to the circumstances so that they are easily understood, while making sure that they cover harmful activities. By including the generic provision on criminal offences, we have ruled out a number of activities that have been proposed in amendments. Other activities need not be covered, because they would not fall within the definition of open-air recreation, or are covered by other restrictions. I hope that your Lordships agree that the restrictions in the Bill sufficiently define the scope of the right and will not feel it necessary to press the amendments.

Lord Monson: Before the noble Baroness sits down, I accept what she says about Amendments Nos. 104 and 105, and possibly some of the others, but she was uncertain about Amendment No. 106. She said that solvent abuse was not criminal and she was not sure

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whether it would be covered. Therefore, what is the harm in incorporating Amendment No. 106 into the Bill in order to make that absolutely certain?

Baroness Farrington of Ribbleton: It is quite possible, for example, that someone who walks across land, exercising their right of access, may be carrying camping equipment. Butane is a popular fuel for camping stoves. It is not illegal to carry or possess the solvents; the point is whether there is an intention to inhale. That is very difficult to define in terms of the legislation.

It is my experience that, even in parts of Lancashire which are very close to rural areas, young people who become caught up in that tragic activity seldom walk anywhere but tend to hide in urban areas. I hope that noble Lords will accept that we, too, view that as extremely serious but do not feel that this type of amendment would help.

Lord Glentoran: I thank the noble Baroness for those explanations. In doing so, I accept that the activity referred to in Amendment No. 104 would be included as a criminal act. I look to her to nod, which she does. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 105 and 106 not moved.]

The Earl of Mar and Kellie moved Amendment No. 107:


Page 49, line 22, leave out ("or sailboard") and insert (", other than a canoe, kayak, sailboard, dinghy, skiff or other manually propelled craft, all of which can be carried to the water,").

The noble Earl said: This amendment is grouped with Amendments Nos. 110 and 114 and relates to boats, bathing and gates. I declare an interest in that I am a vice-president of the Scottish Canoe Association. I held a summer mountain leadership certificate and, of course, I am a landowner in Scotland.

Amendment No. 107 has been tabled to explore why the Bill is silent on access to inland water. On the face of it, the amendment would allow the use of boats which are carried by people to the water without the aid of a trailer, trolley or sled. The boat would not touch the ground and only footprints would be left, as they would be by any walker. Once on the water, such a lightweight craft would leave no evidence of its passage, being propelled by wind or paddle.

However, I wish to explore this matter a little further. At Second Reading the noble Lord, Lord Whitty, said that the Bill did not deal with access to inland water. Elsewhere I have read that the Government have found other difficulties with regard to access to inland water. I should like to ask whether the difficulties are related to the broad activity of boating or access over land in order to reach the launch site, which would be a problem of riparian ownership, or whether the difficulties lie in the complicated legal problem regarding ownership of the water itself.

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I believe that in England and Wales ownership of the solum of a river or lake extends to the water above it, whereas in Scotland the solum may be owned but not the water itself. Therefore, I hope that the noble Lord, Lord Whitty, can explain which of those reasons is relevant to the exclusion of access to inland water as regards the Bill.

I turn to Amendment No. 110, which is rather more straightforward. It seeks to delete the exclusion of bathing in non-tidal water. That restriction seems to be rather unreasonable, at least when tested against the question: what harm can it do? For that reason, I believe that it should be deleted. But then again, I want to explore the reasons for its exclusion. Can the noble Lord explain to the Committee what lies behind the exclusion? Is it fear of drowning and subsequent liability claims or fear of nudity or disturbance to fish, or is it part of the difficult-to-identify legal process of the ownership in England and Wales?

I already discount any suggestion that bathing in inland waters will do any damage to the water, even if the danger of unwashed bodies may lead to pollution. Such pollution would be very slight, especially when contrasted with the effect of atmospheric pollution or pollution carried into the water by drainage from adjacent land.

There is also a mountain safety issue here. It may be that an over-heating and dehydrating walker would benefit from a quick immersion in water. The Bill would be foolish to make that illegal.

The Committee will be pleased to know that Amendment No. 114 has nothing to do with water. It has the purpose of clarifying the Bill's provisions about gates on access land. Whereas the Bill refers to closing gates unless,


    "it is reasonable to assume that a gate is intended to be left open",

the amendment provides that all gates should be closed unless there is a notice affixed to it saying that the gate should be left open.

The problem in the Bill is that it does not deal with the situation where a gate which was intended to be closed was left open by a previous walker. The amendment resolves that problem by requiring a notice to indicate how a gate should be left. It also encourages, obliquely, the provision of stiles adjacent to gates.

The success of this Bill in granting a right of access will be judged by the amount of disturbance that is experienced by those who work in the countryside. Clearly, the aim must be to minimise the disturbance and this amendment will deliver some minimisation. I beg to move.


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