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The Earl of Caithness: My Lords, I am grateful to all noble Lords who have taken part in this wide-ranging but at the same time specific debate because it has focused on a major lacuna within the Bill. There has been support for the idea behind the amendment and the idea of the noble Earl, Lord Peel, from the Labour and Liberal Democrat Benches, from the Cross Benches, and from my own side. For that, I am extremely grateful.

I was very concerned by a number of the Minister's comments. I wish to read them carefully in Hansard. It sounded to me as though the Government were going back on what they had said both in another place and in this House. The Minister's words about land on which hay could be made were, in my view, a distinct retreat from the Government's earlier position. That will be of immense concern to every upland farmer who is following this issue with great anxiety.

The Minister made a rather dismissive remark that definitions are different in Northern Ireland. That was an insult to--

Lord McIntosh of Haringey: My Lords, I did not say that. I said that definitions of improved and semi-improved land used for the purposes of grant might be different. There were no aspersions cast on or praise given to Northern Ireland.

The Earl of Caithness: My Lords, I thank the noble Lord, Lord McIntosh of Haringey, for that clarification. It only goes to prove that more work is to be put on the owners and occupiers. One set of definitions is used for the purposes of grant and a completely different set will be dreamt up by the Government in relation to access. Life will be made more difficult for those in the countryside.

I was concerned about 99 per cent of what the noble Lord said. However, he produced a little pearl to hang on to at the end when he said that he would take away the matter for consideration. It would therefore be

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wrong to test the opinion of the House on this amendment or, indeed, on subsequent Amendments Nos. 6 and 13. I hope that the noble Lord is serious and that he will require his officials to come up with an appropriate amendment. Clearly, what is on the face of the Bill at the moment is totally unsatisfactory and represents a danger to wildlife as well as to the prosperity of the farming community. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 4:


    Page 2, leave out lines 19 to 21 and insert--


("(3) In this Part "registered common land" means--
(a) land which is registered as common land under the Commons Registration Act 1965 (in this section referred to as "the 1965 Act") and whose registration under that Act has become final, or
(b) subject to subsection (4), land which fell within paragraph (a) on the day on which this Act is passed or at any time after that day but has subsequently ceased to be registered as common land under the 1965 Act on the register of common land in which it was included being amended by reason of the land having ceased to be common land within the meaning of that Act.
(4) Subsection (3)(b) does not apply where--
(a) the amendment of the register of common land was made in pursuance of an application made before the day on which this Act is passed, or
(b) the land ceased to be common land by reason of the exercise of--
(i) any power of compulsory purchase, of appropriation or of sale which is conferred by an enactment,
(ii) any power so conferred under which land may be made common land within the meaning of the 1965 Act in substitution for other land.").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 150, which is consequential.

Part I provides for a right of access to all common land registered as such under the Commons Registration Act 1965. The amendment will ensure that access to common land under this Bill is preserved where it is deregistered after the Bill is passed. Similar amendments were moved in Committee by the noble Baroness, Lady Miller of Chilthorne Domer. This meets her concerns.

We recognise that those concerns are real, albeit that 85 per cent of common land is likely to fall under one of the other classifications. Clearly, between Royal Assent and the time at which the rights come into effect, we do not wish to see some of the common land being deregistered. The amendment will prevent that leakage. I beg to move.

4.15 p.m.

Baroness Miller of Chilthorne Domer: My Lords, I am grateful to the Government for coming back with this amendment and for taking the opportunity to strengthen the position of commons and, later in the Bill, of village greens. I am glad that those areas have

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not been left unprotected, small though they may be. We believe that they are very important and, as I said, I thank the Government .

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 5:


    Page 2, line 21, at end insert--


("(3) It shall be the duty of the appropriate countryside body to set out clear definitions of moor, heath and down.").

The noble Earl said: My Lords, your Lordships will have noticed that I moved the same amendment in Committee. I am emboldened to table it again in view of what the Minister said in Committee on 27th September at cols 896 and 897. He said that he would need to consider the anxieties expressed over the previous 31 minutes on the issue. Sadly, that reconsideration, which I hope he undertook, has not taken the form of a government amendment. I am therefore proposing the amendment again.

It is a major defect that there is no instruction on the face of the Bill for one body to come forward with a clear definition of "moor, heath and down". As we discussed in Committee, it is absolutely critical that we should know what the definitions are. Those definitions must be arrived at by a central body so that they are national definitions. They should not be drawn up by individual countryside bodies which, first, do not have the expertise to make the definitions and, secondly, will come up with a variety of different definitions.

As I said in Committee, the definitions of "down" and "heath" vary considerably in the Oxford English Dictionary and I shall not bore your Lordships by repeating them. However, because of the very wide range of definitions, it is extremely important to have them made by one body and clear on the face of the Bill. I beg to move.

Viscount Bledisloe: My Lords, the necessity for an amendment to this effect, although perhaps not the amendment itself, was demonstrated by the reply of the noble Lord, Lord McIntosh of Haringey, to the debate on grassland.

The noble Lord, Lord McIntosh, appears to contemplate that the Countryside Agency will lay down certain definitions or instructions which will provide, for example, that improved grassland does not count as down. But under the Bill as it now stands the Countryside Agency does not have that power.

In the last resort, what is or is not "down" is a question of law and would be for the courts to decide. Neither the Government nor the Countryside Agency could say, "We have decided that improved grassland is not down and therefore we will not map it" if someone comes along and demonstrates that down does include certain areas where grassland is improved and therefore has to be mapped .

If the system intended is the highly desirable system which the noble Lord, Lord McIntosh, explained on Amendment No. 3, then he needs on the face of the Bill something which says that the countryside body shall define what is moor, heath or down and for that to be

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conclusive. If the Countryside Agency is meant to be the judge of that, that is very good but the Bill does not allow it because anyone dissatisfied with its decision would be able to mount a challenge in court and say that what is "down" is a matter of law and that something is not being mapped which is down or that something has been mapped which is not down.

I hope that the noble Lord will take away that point and think about it. Clearly, the system which the noble Lord, Lord McIntosh, outlined is a very sensible way of resolving this question but that is not what the Bill provides at present.

Earl Peel: My Lords, there were many occasions in Committee when matters were referred back to the access authorities by the Minister, in the hope that everything would be all right. In many cases that will be so, but as the Bill is all about access on moor, heath and down, in the absence of clear definitions people will be unclear. That applies not just to the access authorities but to those whose access land will be incorporated in the Bill.

We constantly return to the point about reducing conflict, appeals and litigation. If we do not get certain things right at the beginning, those characteristics will raise their ugly heads time and again. I hope that the Government will listen seriously to my noble friend, whose amendment is fundamental.

Baroness Byford: My Lords, clarification is required because it is not right to leave the matter. I am anxious that the Government place a duty on the countryside body to make clear definitions, at least as a starting point. In the absence of such definitions, there will be total confusion. It has been suggested in earlier debates that we are misplaying some of our apprehensions, but if the Minister will have definitions clearly set down, that would relieve a lot of pressure and dispel the apprehension felt by many noble Lords.


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