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Lord Glentoran: I wish to speak to Amendments Nos. 122 and 123, which also appear in this group.

Amendment No. 122 lists certain activities as criminal offences. The Government, at Report stage, amended Schedule 2 by inserting the general restriction that anyone committing a criminal offence would become a trespasser. At the same time five restrictions were removed that to all intents and purposes relate directly to criminal offences; for example,


It is important that it is made clear to the public, through codes of practice or other forms of publicity in relation to access land and the right of access, which activities on access land involve criminal offences and which are purely civil offences. Often the public do not appreciate that certain activities, such as those listed in the amendment, actually involve criminal offences. An assurance is sought from the Minister and the Government that guidance produced by the countryside bodies in relation to the right of access will specifically inform the public that the activities listed in the amendment, which are the same five activities deleted from Schedule 2 by the Government at Report stage in another place, involve criminal offences.

Transparency on this issue in the Bill, which would feed through to transparency for the public in any codes of practice, could be improved if the list of activities in Schedule 2(1) was divided into two lists. The first could list restrictions which involved criminal offences, including those listed in the amendment. The second could list restrictions which were purely civil offences where the only sanction would be that the person breaching the restriction could be required to leave the land for the rest of the day.

I can speak to Amendment No. 123 fairly briefly. The amendment states,

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    "For the purpose of paragraph 1(q), 'organised games' include any team games or any individual sport that requires a pitch or playing area but does not include orienteering".

This amendment is intended to exclude orienteering from the organised games which are to be excluded from access land. Orienteering should have special dispensation owing to the spread-out nature of its participants. Unlike organised games, such as football, orienteering will not cause significant wear and tear on the ground or significant disturbance to wildlife.

Lord Marlesford: I support my noble friend's amendment. It makes the situation much clearer than simply subsuming it all under a criminal act. These are the kind of matters that relate directly to access to the type of land that the Bill is seeking to cover. They will be meaningful and relevant and are important examples of the kind of thing people might do. I can see the advantage of having the catch-all phrase as well. But it is not necessarily bad drafting to spell out specific acts which happen to be criminal acts and then to use a phrase such as "any other criminal act" would cover both points.

Baroness Farrington of Ribbleton: As the noble Duke, the Duke of Montrose, said, Amendment No. 118 would add to the restricted activities the holding of outdoor meetings or sporting arrangements which could cause damage or might require the cordoning off of land. We have already provided that the right does not extend to those engaging in any organised games or activities undertaken for any commercial purpose. Those activities are restricted by paragraphs 1(q) and 1(r).

We consider that "sporting arrangements" are likely to be covered by the restriction on organised games. Where sporting arrangements are not organised games, they would almost certainly comprise a commercial activity. I am still not quite sure what the term "outdoor meetings" is intended to cover. Where a group of people meet outdoors to go for a walk--such as a local walking group--we would wish and expect the right to apply to that activity.

Amendment No. 123 adds a definition of "organised games", which are excluded from the right by the restriction in paragraph 1(q). We do not think it necessary to provide a statutory definition of the phrase "organised games"; it will have its ordinary meaning.

The definition of "organised games" given in this amendment would specifically allow orienteering. We believe that where a small number of people use a map to follow an allotted course across open country that should fall within the statutory right. But where orienteering could be taken to be an organised event with specific checkpoints and so on, which might involve a significant number of people, we think that this would be more intrusive and do not believe that it should be covered by the right of access. Perhaps I may stress again that we are talking about the automatic right and not prohibiting, with the owner's consent, the activity from taking place.

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As regards Amendment No. 122, we shall certainly expect the Countryside Agency to set out clearly what people can and cannot do, including the most common activities which would constitute a breach of the restrictions. The activities referred to in Amendment No. 122 will be criminal offences, except for breaking through any hedge, fence or wall. That may be a criminal offence if it is deliberate. In any event, it will lead to the loss of right of access by virtue of Clause 2(1)(a).

We need to keep in mind that those benefiting from the new right of access are hardly likely to carry with them a copy of the Act. Therefore, the course that we suggest, which would involve the use of the code of practice and the Countryside Agency's advice, are more likely to draw to people's attention the activities which are unacceptable.

The noble Lord, Lord Glentoran, referred to the possibility of having two lists of restrictions. We do not believe it is necessary to include in Schedule 2, as has been suggested, a separate list of restricted activities which are also criminal offences. We have provided that any criminal offence will render the user a trespasser and it is not necessary to spell out specific offences. The public will be just as aware of which activities are criminal offences on access land as they are when walking down thestreet and ought to avoid them in the same way. However, we are sure that the countryside bodies will want to ensure that general guidance about the new right identifies criminal offences most likely to be relevant to access for walkers.

As I said earlier, we gave careful consideration to what should be included in Schedule 2. We understand the need that the restrictions should be easily understood and cover harmful activities. We think it is important to keep the list simple and avoid duplication, which rules out a number of activities which do not fall within the definition of "open-air recreation" or are covered by other restrictions. I hope that the Committee will agree that the restrictions in the Bill sufficiently define the scope of the right and will not press the amendments.

1.30 a.m.

The Duke of Montrose: I thank the Minister for the way in which she addressed my amendment. She answered some of my worries but I should like to read her reply at leisure and if I find anomalies return to the issue. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 119:


Page 50, line 5, after ("camping") insert ("(except bivouacking in an emergency situation)").

The noble Earl said: This amendment has to do with the exclusion of camping from the right of access. It seeks to clarify that the prohibition on camping is aimed at deliberate camping rather than bivouacking on an unintended and hence emergency basis.

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There is a mountain safety case to be made here. For those out on the hills in difficult terrain who run out of daylight it is often wrong and dangerous to continue the journey in the dark. The Bill should not send out a different message on this safety issue. The amendment would clarify that safety by overnight bivouac is permitted while continuing to rule out intentional camping.

It may be thought that a problem may arise in proving intent to camp or establishing that it is an emergency situation. I would contend that a quick examination of the scale of the mountain walker's gear would indicate whether it was a planned camping expedition or an unplanned but prepared-for-overnight bivouac. The Bill must allow for the contingencies and consequences of what it seeks to deliver. I beg to move.

Lord Glentoran: Amendment No. 119 is vigorously opposed on the basic principle that it is not necessary. It is accepted that there may be occasions when people will need to bivouac because they get caught out, but in the light of discussions earlier on about various transgressions and how they would be treated, it seems to me that common sense would prevail and any police officer or landowner finding people bivouacking and in some distress would not be thinking of prosecuting but of assisting. To put this on the face of the Bill would create a loophole and many others could make a habit of bivouacking when they were not in bona fide distress.

I shall speak now to Amendment No. 120: after "camping" insert,


    "including bivouacking and launching a hot air or gaseous balloon".

As currently drafted the Bill fails explicitly to prevent hot air ballooning from access land. Hot air ballooning is a sport that requires a large amount of complex and heavy equipment. The sport contains a significant risk to its participants and to people on the ground; thus it has serious implications for land management and conservation interests. It is a clear example of an activity which should take place on land where access has been negotiated.

I have done a certain amount of hot air ballooning, so I understand the amendment. It is quite a complex sport. It looks wonderful when the balloons are seen up in the air, and it is wonderful. The feeling up there, when one can see where one is and drifting along, is magic. If anybody has a chance to go hot air ballooning, they should not miss the opportunity. However, it makes a lot of noise, requires a lot of equipment and a lot of people and it can be hazardous.


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