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Earl Peel: My Lords, will the Minister address my specific point about the assessment made by the district valuer from Scotland of the costs incurred by landowners because of the access agreements in the Peak park at £4 an acre?

Lord Whitty: My Lords, on existing access land there are arrangements between the access authority--usually the national park--and landowners, under which payments are made to landowners in respect of access. However, in those places landowners have no right to apply for restrictions, there is no reduction in their liability and there is no provision for reimbursement by the access authorities for expenditure to facilitate access in the way that I have described. All those aspects are reflected in statutory rights or limitations and statutory reimbursement in the Bill. That does not apply to voluntary access in the Peak park.

Earl Peel: My Lords, with respect, I have a copy of the Peak District National Park Authority agreement on access. There is a general indemnity against anybody incurring liabilities under the agreement.

Lord Whitty: My Lords, that is not a statutory indemnity. We are talking about the statutory balance between restricting liability, providing for reimbursement and restricting the impact of access to minimise the costs to occupiers and land managers. All of that operates in favour of the landowner. The amendment would provide for financial compensation that is already met by the other provisions of the Bill.

In some circumstances the landowner will voluntarily undertake certain costs. There may be benefits to him from co-operating with the access authority to provide a facility that benefits him at least as much as it benefits the users of the access right. The costs of making provision solely for access rights would fall on the access authority where it judged the work necessary, not on the landowner.

The impact may be more significant for a minority of landowners, such as those who own honeypot sites. Our approach is to deal with such situations by agreement and by management. That is why the attack on the noble Baroness, Lady Miller, was misplaced. She said clearly that arrangements ought to be established by consensus and agreement, not by an adversarial process of compensation. The local access forum will have a major role to play, as will the agreements between the access authority and landowners.

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In some honeypot situations, the landowner will have opportunities to recoup some costs by diversifying and providing commercial facilities. The costs can be met in all sorts of ways. Compensation creates a psychology of confrontation and an inappropriately adversarial arrangement. Only a few hours ago we made provision for local access forums and for arrangements under which the access authority would cover the cost of facilitating access.

The argument that the Government should provide for compensation if they think that the costs are minimal should be addressed in that context. Providing for a general right of compensation, even in the relatively precise terms of the amendment, means presuming that the issues will be dealt with through a system of compensation and claims, whereas we want the facilitating, managing and operating of access to be addressed in local access forums by agreements and by co-operation between the access authorities and landowners and users.

It is in that context that we address the problems where costs are incurred. By and large, such costs would be met in other ways. If we start to provide for a system of compensation, not only will the access authorities be tempted to say, "OK, that is what we want. If you don't like it then go for compensation", it will also provide for unscrupulous landowners to go through the courts and claim compensation before they agree to any form of access. We want the presumption to be that there will be agreement. This amendment is based on the presumption that there will not be agreement.

Finally, perhaps I may address--

6 p.m.

Lord Roberts of Conwy: My Lords, perhaps the noble Lord will assist me on one point. Much concern has been expressed in many areas about the future of agreements such as those operative in the Peak District, as referred to by my noble friend Lord Peel. Will the passage of this Bill into law mean the end of those agreements?

Lord Whitty: No, my Lords. As with other voluntary access, the voluntary agreements are not affected directly by this Bill. Should those agreements fall at some point, the statutory back-up may well come into play; currently it does not. However, there is no presumption that such voluntary arrangements would fall with the passage of this Bill and I would not expect them to do so.

Finally, I address briefly the point raised in relation to human rights. We went over this matter at an earlier stage and I rather suspect that it will be addressed more fully when we come to the later amendment tabled by the noble Lord, Lord Brittan. I was asked to check our legal advice on this matter. I have now done so. The legal advice remains that this issue does not create a problem in relation to the Human Rights Act and that

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the proposals are fully consistent with that Act. As I said, we may well wish to return to the issue and I shall save further details until then.

Viscount Bledisloe: My Lords, before the noble Lord sits down, is he aware that he has dealt with only half of the amendment? He has spoken at great length about why the landowner will not need to incur costs and expenses. However, he has not dealt at all with loss caused to a landowner by someone who exercises the right. Someone may let his dog off the lead and it may then kill some sheep. We may not know who that person is or he may not have any money. The noble Lord has not dealt with such a scenario. No amount of saying that the access authority will carry out many good deeds will prevent such a situation happening or give the owner consolation for his dead sheep. The noble Lord has not dealt at all with that aspect.

Lord Whitty: My Lords, the matter of someone letting loose a dog will not be covered by this Act any more than it is at present by any other legislation. If we expect the statutes of the land to provide for compensation from the public purse for all unidentified vandals and all people who breach the restrictions of the law, that should apply to all property owners and all commercial operations right across the land.

Once again, the landowners in this debate are seeking special treatment for landowners in this particular situation. That is something that I have attempted to resist throughout our debates. I accept that a degree of balance must be established. However, I do not believe that the type of special treatment sought under this amendment is appropriate in these circumstances.

Baroness Warnock: My Lords, it must be wrong to say that if this amendment were passed it would mean that unidentified vandalism of any property would have to be compensated by the Government. After all, this Bill proposes a new risk to landowners which is not the same type of risk to which all householders are exposed. Because access will be granted, damage may indeed be incurred to the landowner's property and also to his preferred way of farming, as the noble Lord, Lord Northbourne, has already pointed out. Compensation is being proposed only within the context of this Bill. So far as I understand the amendment, it has no further general application whatever.

Lord Whitty: My Lords, that is precisely the point that I am making. Effectively, subsection (2) of the amendment suggests that the state will compensate such landowners for unidentified criminal damage--to livestock in the example given by the noble Viscount--whereas in no other situation does the state provide such an indemnity. I do not consider that to be appropriate in these circumstances. Given all the other safeguards that we have built into the Bill in the course

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of the deliberations in this House, I believe that it would open a door and create a precedent which is not to be found in any other area of property law.

The Countess of Mar: My Lords, can the noble Lord say in what other circumstances members of the general public can go on private land as a matter of right? What compensation is available for the landowners in such cases? I think particularly of someone who is careless with a cigarette, throws it away and burns a man's grazing. How will the owner of the grazing feed his stock if the area where people are allowed to walk is burnt?

Lord Whitty: My Lords, it is a criminal offence to light a fire. If one cannot catch the criminal, one cannot prosecute him. That applies just as much to all owners of property as it does to owners of access land. From time to time, all owners of property are subject to graffiti, damage and other activity by vandals and criminals. However, we do not turn to the state to compensate them.

Lord Brittan of Spennithorne: My Lords, in listening to the Minister's response to this debate, I could not help feeling that his sense of justice was overwhelmed by his admiration for his own generosity. I do not believe that that is a justified response to a debate or an answer to a serious point. In fact, the last points made by the Minister were the least persuasive of all.

It simply will not do to present this amendment as if it were seeking to give landlords a privileged position or a special benefit. It is wholly different from a situation in which in the ordinary course of events someone suffers loss or incurs expense and cannot recoup it because he cannot find the person responsible or the person cannot find money. The fundamental difference is that in this case the loss and expense have been incurred because of the action of the Government and Parliament in passing this legislation. That is a fundamental difference. It is no use the Minister shaking his head. In a reasonably extended response he has not given a single reason why it is not a wholly different situation.

The questions that the House must consider are whether costs and expenses are incurred; whether it is reasonable that those should be met; and whether this position is a reasonable way to meet them or whether there is an alternative. I want to address particularly the point made by the noble Baroness, Lady Miller, in the hope that, even at this late hour, I can persuade her to join us in the Division Lobbies where I believe we should go in support of this amendment.

First, the relevance of what my noble friend Lord Peel said about the situation in the Peak District was simply that there it was recognised that special rights of entry were likely to cause injury or damage and therefore an indemnity existed for that. The point is that the district valuer calculated what the costs were likely to be. That shows that, in circumstances where extended rights of access are given, it is likely that costs will be incurred. From all quarters of the House

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countless examples have been given of costs, expenses and losses that would be incurred, and the Minister has not been able to deny them for a single moment.

I turn to the matter of insurance. The Minister made a point about the wonderful provisions in the Bill and the extreme generosity of the Government in mitigating the costs. No one denies the costs, whether they be incurred through insurance or the possibility of loss referred to by the noble Viscount, Lord Bledisloe, in his recent intervention. Money will be expended and costs will be incurred. The question which arises is that, if costs and expenses are incurred as a result of legislation, should there not be a provision for those costs to be met? What is the answer to that? The answer is, first, it will not be as bad as all that because of the all the wonderful things we have done.

In that regard, I turn to the noble Baroness, Lady Miller, and say that even if you accept that the provisions with regard to access forums make it possible to reduce substantially the risk of damage and losses being incurred, and even if you add to that the further provisions with regard to wardening and all the steps which the Government have genuinely taken which are good to try to reduce the likelihood that there will be costs or the extent of those costs, nobody could possibly say that that is a total solution to the problem. Even if the forums worked wonderfully, the wardens were put into existence and the authorities acted in good faith with generosity, nobody could possibly say that that would prevent costs or expenses being incurred by the individual landowner. At most, it will reduce the amount which will be incurred.

To the extent that it reduces it, it will reduce the amount of compensation which will be payable under this provision. Therefore, it is not right to say, as the Minister said, that that will stir up litigation and make it confrontational, whereas what the Minister prefers is the more conciliatory approach which has the agreement of everybody concerned.

Frankly, it is disingenuous to pretend that that is an answer to the debate, because if those provisions with regard to access forums reduce the amount of costs and expenses incurred, nobody could possibly suggest that they will eliminate them. The lower they are, the lower will be the bill that the Government have to meet if this amendment is passed. Therefore, the Minister should welcome it.

It is quite unfair and meretricious to pretend that this is stirring up litigation or confrontation when everything could be settled peacefully and comfortably around the forum table. That is absolute nonsense and the Minister in his heart of hearts knows it. The truth of the matter is that he is saying that he has gone far enough and he does not have the stomach or the patience to go further. That is not a way to legislate or to do justice.

If the noble Baroness, Lady Miller, looks at the new clause, she will see that it is couched in extremely moderate terms. The point that she makes about exceptional expenditure is covered by the fact that costs and losses can be recovered only where the expenses have been reasonably incurred. That means

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that if the actions of the forum enable the problem to be solved in some way and the other wonderful measures enable the problem to be solved, then there is no claim. It is only after all that has failed and losses and expenses have been incurred that this provision bites.

It is extremely difficult to see that a concern for the human rights convention would enable one to come to the conclusion that if all other measures fail and losses are still incurred, there should not be this modest, carefully and narrowly-drawn provision for meeting those costs and expenses. Therefore I hope that your Lordships will join us in the Division Lobbies in support of adding an element of justice to what is already provided. I hope that the Minister will not feel that because he has met some concerns, he should resist others, provided that those concerns are legitimate and moderately couched.

6.13 p.m.

On Question, Whether the said amendment (No. 80) shall be agreed to?

Their Lordships divided: Contents, 123; Not-Contents, 159.


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