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Lord Dubs: My Lords, I should like to speak to Amendment No. 117B standing in my name, which has broadly similar aims to the three amendments just moved by the noble Lord.

Amendment No. 117B will enable the Secretary of State to require the exercise of discretion under Clause 21 to relate to land the boundaries of which are determined by regulations. That would have two benefits. First, it would help both walkers and those managing the land to know the area over which closures or restrictions applied. It could, for example, require those entitled to discretionary closures, in notifying the Countryside Agency of their intention to close land under Clause 21, to show the area of land closed by following physical features shown on a map of the area affected.

Secondly, if the regulation-making power is needed, it would help prevent possible abuse. Although I am sure, as was the noble Lord, Lord Greaves, that the

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vast majority of landowners will be responsible and reasonable, there may be a few who simply wish to exclude public access over the largest possible area for the longest possible time.

As it stands, I believe that Clause 21 could be used to make arbitrary closures of strips of land, which serve no purpose other than to exclude access to much larger areas of adjacent land. Regulations made under my amendment could, for example, ensure that only parcels of land which are demarcated by physical features, such as walls, streams or fences, could be notified as closed under Clause 21.

My amendment would not require the Secretary of State to make regulations, but he could do so if it were helpful to ensure that land subject to closures was properly identified, or if there were indications that the discretionary right to restrict access was being abused in the way which I have already described.

I hope that the Minister, will agree that this modest amendment would be a useful and desirable addition to the Bill.

Baroness Young of Old Scone: My Lords, I am confused. It may be the advanced hour or it may be that there is a degree of inconsistency between Amendment No. 133 and Amendment No. 129, which the noble Lord seemed to present in a way which implied that they are both designed to meet similar ends, in spite of the fact that they refer to different reasons for exclusions and restrictions.

I must confess that the interpretation which he gave to his amendment was not that which I read into it when I read it initially. I believe that Amendment No. 133 is capable of quite considerable misinterpretation and, therefore, is rather dangerous. I was extremely alarmed by Amendment No. 133 which seemed to provide that relevant authorities could refuse to grant exclusions or restrictions even where they were necessary for the protection of flora and fauna, if that meant that there was no equivalent access land available elsewhere.

That seems to be totally against the principles we have heard enunciated in the Bill; that is, that nature conservation interests must not be damaged for the purposes of providing reasonable access. I hope that we can have an assurance, first, that this was not the intention of the amendment and, secondly, as it is capable of being interpreted in a different way, perhaps it is not the right amendment to adopt. I would not want to see anything on the face of the Bill that permitted any horse trading between the relative merits of access and wildlife or anything that implied it was acceptable for wildlife conservation interests to be sacrificed for other benefits.

10.45 p.m.

Baroness Miller of Chilthorne Domer: My Lords, from these Benches, perhaps I may assure the noble Baroness that that was not the intention in tabling Amendment No. 133. The amendment states:


    "shall have regard to the extent to which it is possible to provide reasonable access".

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Clearly, if the closure was because the land was sensitive in wildlife terms, the conclusion would have to be that it would not be possible. I can perhaps accept that our wording is not perfect, but we were not seeking to achieve anything damaging, such as the noble Baroness suggests. However, we are willing to look again at the wording of the amendment.

Lord Glentoran: My Lords, I rise to speak both ways, for a change. I fully understand the desires of the noble Lord and have much sympathy with them, particularly coming from where he does and from where I might have come from. However, as the noble Baroness, Lady Young, pointed out, there are dangers in having the amendments on the face of the Bill, particularly Amendment No. 133.

I assume that part of the process of applying for a restriction order will be by way of explanation, discussion and negotiation with the access authority. When an application has been received and is being discussed, it will become apparent to a local authority that the effect of closing a particular piece of land will be to debar people using it. I would have faith in the access authority being wise to that and attempting to negotiate an alternative route.

I am probably making the Minister's speech. If I am, forgive me. I feel that there is no need for the amendments on the face of the Bill because these matters are adequately covered.

Viscount Bledisloe: My Lords, in answer to the noble Baroness, Lady Young, the noble Baroness, Lady Miller stated that Amendment No. 133 requires the relevant body only to have regard. However, Amendment No. 117A states absolutely that you cannot exclude or restrict if the result is that it prevents access to somebody else's land. The noble Lord, Lord Greaves, shakes his head. The amendment states:


    "may not under this section exclude or restrict access in such a manner as to prevent reasonable access by the public to other access land".

So, if it does prevent access to other access land in somebody else's ownership, it cannot be done.

Under this clause, the owner has an absolute right to give notice and to state, "These are my 28 days". I do not understand how the clause comes into effect. Although it is perfectly reasonable for the owner to do that in relation to his land, it might stop people getting on to some other land. He has given his notice and that is enough. The noble Lord, Lord Greaves, appears to contemplate that after an owner has given his notice, somebody will return and say to him, "Don't you realise that if you give this notice, people will not be able to get on to Mr Blogg's land next door; therefore your notice is invalid?"

I do not understand how that works. Nor do I see why an owner who wishes to exercise his 28 days for his own purposes should suddenly be prevented from so doing because it prevents people getting on to somebody else's land. With respect to the noble Lord,

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Lord Greaves, I suggest that Amendment No. 117A is wholly unworkable. Even if it was workable, it would be wholly unfair.

Lord Whitty: My Lords, I am grateful to the noble Lord, Lord Glentoran. Indeed, he gave part of the ministerial speech in relation to Amendments Nos. 129 and 133. While I did not see quite such a sinister implication in Amendment No. 133 as did my noble friend Lady Young, I can see that it could arise. That would be an overriding consideration whereas I believe the noble Lord wanted it to be only one of the considerations to be taken into account.

The considerations under Amendment No. 129 in regard to reasonable access to other access land, are already a relevant consideration. Likewise, in relation to Amendment No. 133; that too can be taken into account. So on both counts those amendments are not necessary; those consideration can be taken into account.

However, the basic point raised by the noble Lord, Lord Greaves, is important. There is a problem in that if we accept, as we do, that different parcels of land in one ownership can make applications for restriction or discretionary restriction at different times, then it is important, first, that that is not abused in a way that might restrict access to access land in general; and, secondly, that it is evident to those who wish to use the land as well as to the owners which land is involved. It is therefore important to find a way of describing the land and of ensuring that it is not used in the way the amendment of the noble Lord, Lord Greaves, seeks to address.

The amendment uses the term, "reasonable access". That could create fertile ground for dispute. It is also somewhat absolute in that it would override other considerations, though the noble Lord shook his head when that was asserted by the noble Viscount, Lord Bledisloe. However, it could be read that way. Nevertheless, we have to find a way of dealing with the problem the amendment addresses.

I would prefer going down the road of my noble friend Lord Dubs. His amendment recognises the need to provide some degree of flexibility and his Amendment No. 117B would allow regulations to be made to ensure that the discretion was applied in relation to properly identified units. That would give a clarity and a certainty to the exercise of discretion under Clause 21. That does not necessarily mean we expect specific regulations; clearly, as the amendment of the noble Lord, Lord Greaves, provides, a number of negotiations could take place and there is a possibility of direction in those areas. But were difficulties to arise in either the abuse of the power or in the identification of the land concerned, it is important to have the reserve power to require the exercise of discretion in order to identify the units of land to which the power applies. That would help any landowner who might seek to abuse the flexibility while at the same time provide the basis for certainty as to what the landowner could do and to which pieces of land the restrictions apply at any given time.

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Therefore I favour the approach of my noble friend Lord Dubs and am prepared to accept his amendment.


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