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Baroness Ramsay of Cartvale: My Lords, I beg to move that the House do adjourn during pleasure until 8.55 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.52 to 8.55 p.m.]

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Countryside and Rights of Way Bill

House again in Committee on Clause 21.

Baroness Byford moved Amendment No. 242:


    Page 13, line 3, leave out from ("land") to end of line 4.

The noble Baroness said: In moving Amendment No. 242, I should like to speak also to Amendment No. 246. These two amendments seek clarification as to which interests will be able to make discretionary closures. Clause 21 provides for restrictions on access, or the closure of access land, at the discretion of the owner and,


    "any other person having an interest in the land and falling within a prescribed description".

It is not clear to me why the clause provides that interests other than the owner must be prescribed. Clause 41 provides a clear definition of an interest in land:


    "'interest', in relation to land, includes any estate in land and any right over land, whether the right is exercisable by virtue of the ownership of an estate or interest in land or by virtue of a licence or agreement, and in particular includes right of common and sporting rights, and references to a person interested in land shall be construed accordingly".

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

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

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

9 p.m.

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

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

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

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

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

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

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

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

Baroness Byford: I am grateful to the Minister for that encouraging response. The Government are well aware of the sensitivities and difficulties in organising

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these days. The Minister pointed out that it was possible for the land manager to reallocate some of the days--for example, to a shooting licensee. She said--I hope I have this right--that it is not a perfect solution. I am grateful to her for stating that the Government understand that there is a problem. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Luke moved Amendment No. 243:


    Page 13, line 6, leave out ("twenty-eight") and insert ("ninety").

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

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

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

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

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

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

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


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