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Lord Northbrook: My Lords, I thank the Minister for his earlier reply. I should like to read carefully what he said. In the mean time I beg leave to withdraw Amendment No. 144.

Amendment No. 144, as an amendment to Amendment No. 143, by leave, withdrawn.

On Question, Amendment No.143 agreed to.

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12.15 a.m.

Lord Brittan of Spennithorne moved Amendment No. 145:

    After Clause 38, insert the following new clause--


(" .--(1) Where an owner or a person with an interest in land proves that he has suffered a diminution in the value of his land or interest therein due to the right conferred by section 2(1), he shall be entitled to claim compensation in the same manner and on the same basis as provided under sections 70 to 72 of the National Parks and Access to the Countryside Act 1949 ("the 1949 Act") in relation to land over which an access order has been made under Part V of that Act.
(2) Regulations may be made as under section 70 of the 1949 Act.").

The noble Lord said: My Lords, I rise to move Amendment No. 145. My noble friend Lord Renton asked me to say that he would have liked to be here to speak in support of this amendment but is indisposed because of a heavy cold. I understand the noble and learned Lord, Lord Brightman, to be similarly indisposed.

Amendment No. 145 provides compensation if there has been a diminution in the value of the land as a result of the right of access provisions of this legislation. I start on the basis that it is reasonable, as a matter of common justice, to provide that somebody whose land becomes less valuable exclusively as the result of rights conferred specifically by an Act of Parliament, should receive compensation. It is not an act of nature; it is an act of government and the owner of the land is, ex hypothesi, the loser.

Quite apart from it being reasonable as a matter of common justice that somebody whose land suffers a loss of value as a result of the deliberate decisions of Parliament should receive compensation, it is also something which, if not provided for, is likely to amount to a breach of Article 1 of the human rights convention which is now part of the law of this country. The House will be relieved to hear that I do not propose to repeat everything I said in Committee in relation to the application of the human rights convention to this Bill.

However, I will say that although I have not been able to be present during all your Lordships' debates on the Bill, I am not aware of any substantial answer being given to the points I made in the debate relating to the application of the article in the Convention on Human Rights. Perhaps I may remind the House that I was not simply making it up as I went along, but citing relevant British court decisions as well as Strasbourg ones. So I remain dissatisfied with the state of the Bill, and the amendment is designed, at least in part, to remedy the problems caused by the lack of compensation on the face of the Bill and its incompatibility with the provisions of the Convention on Human Rights.

When one is talking about the right of access, one is really talking about a generalised right of way. The only difference is that the right of way is not on a linear path but over a wide area of land. The purposes for which it is granted are not to pass and repass, which is

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practically the purpose of a right of way, but for recreational purposes. But in all other respects it is a generalised right of way and I do not believe that it would ever be doubted that if one grants a right of way on someone's land one is thereby diminishing the value of the property. The only question is to what extent, if it is measurable, is there such a diminution. The same would apply if there had been a right of access, but a greater loss would be suffered because the right of access to the land is greater than a mere right of way.

The question for the House is: has there been an infringement of property rights and, if so, should compensation be granted for that? The House will recall that on 18th April this year, Mr Meacher in another place conceded that the Bill infringes property rights. I do not believe that that can be seriously disputed. But of course it is the case that as regards the convention the right is not absolute. It has been interpreted as requiring a fair balance to be drawn between the demands of the general community and the requirements of the individual's fundamental rights, including the right to enjoy his property without any diminution of its value.

Therefore, if that fair balance has to be drawn in order to establish whether there has been a breach of the convention, the question of whether compensation is provided is supremely relevant. Let me once again quote the recent case of Lithgow in which the judge stated that compensation terms were material to the assessment of whether a fair balance had been struck between the various interests at stake and, notably, whether a disproportionate burden had been imposed on the person deprived of his possessions.

Therefore, compensation terms are not merely relevant, they are material, and there are no such provisions here. Therefore, it seems to me clear that apart from questions of justice in the abstract sense and fairness in the normal sense, the Minister must be highly at risk with regard to the provisions of the Convention on Human Rights if he proceeds without allowing for compensation where there has been a loss of value of the land.

That argument is all the stronger for the fact that there is ample precedent for providing for compensation where there has been a loss of property rights as a result of statutory enactment. Indeed, the wording of my proposed new clause derives wholly from that precedent; namely, that of the National Parks Act. To that might be added the Highways Act 1980, which deals in similar fashion with the effect of the creation of rights of way.

What we are proposing in the new clause is to follow precisely the procedure of the National Parks Act with regard to compensation. As to that, the Minister will recall that ample protection is given against frivolous claims in the sense that people assert that their land has lost value when there is no evidence of it. One of the ways in which that is guarded against is that a claim can be made only after five years when there will or will not be evidence of a loss of value.

In scanning the various observations that have been made during the passage of this legislation I have sought an answer to the question of whether, in

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fairness, compensation should be granted and how the situation is to be handled in terms of the European Convention on Human Rights. At times it is said that in effect there cannot be any possible loss of value. The question that is frequently asked is: if that is so, what do the Government have to fear from a provision which states that if after five years it can be shown, contrary to their belief, that there has been a loss of value compensation is payable?

It is not credible to believe that if there is a substantial increase in access, under no circumstances will there be any loss of value. Noble Lords will recall that in earlier debates I said that the whole purpose of the Bill was not to bring about an incremental addition to the number of people having access to the land but that, for the benefit of the public, there should be substantial extra access to the land. There would be no point in introducing legislation of this complexity if it was not meant to change the situation on the ground and give large numbers of people the right to enter upon other people's property which they do not have now. In those circumstances, the evidence already cited of an average cost of £4 per acre in the Peak District is relevant as an indication of probable loss in value. That loss must be proved and cannot simply be asserted. There is no basis for saying it is inconceivable that there will be any loss at all.

Another argument that I discover in scanning the pages of the reports is that compensation may be given. It is clear from the cases, in particular the one I cited when noble Lords last debated this matter, that it is no answer to an entitlement to compensation on grounds of justice to say that some body may in its discretion give compensation if it wants to do so. That is fundamentally contrary to all principles of law. If one is entitled to compensation, it is a matter of right and is not dependent on the discretion of some body. If it is clearly established that there has been a diminution in the value of land, it is inconceivable that anybody who considers the issue will say that it does not matter because some body may or may not at its discretion grant compensation.

A further argument which appears to be deployed in answer to the call for compensation is that the grant of the right of access affects everybody and, therefore, there is no entitlement to compensation for a breach of the convention. There is a fundamental flaw in the logic of that argument. It is certainly the case that if different groups of people in the same circumstances are treated differently that is discrimination which may be the foundation for a claim that there has been a breach of the convention. But it is a great mistake to say that it is only if there is discrimination in favour of or against one particular class of people among those affected that a breach occurs. There does not need to be discrimination for a breach to arise. It is clear that if there is unfair deprivation of the value of one's land, that is objectionable, whether it applies to everybody or to only a class of people.

The final argument concerns who should pay compensation because of the loss of the value of the land. Again, as in the case of the national parks provisions, I have followed the analogy there and said

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that the exact modalities whereby this right is translated into a reality should be left to regulations. That would be a reasonable approach.

Perhaps I may say to the Minister that this is not meant to be a subversive amendment. It is not meant to be something that makes it impossible to grant the right of access which the Government feel they have a mandate to grant to people who have been waiting for it for a long time. Rather I would say that those who feel they have waited so long to get this right of access will not thank the Government if that right is held up for a long period in litigation in this country and elsewhere because the present provisions are found to be in breach of the human rights provisions--provisions that the Government have, to their credit I happen to believe, enacted. I would say to the Minister that to the extent that he thinks that compensation is something which is irrelevant because it will never arise, the noble Lord would be wise to listen to the arguments that have been put forward in many quarters that a provision of this kind would not subvert the intentions of the Government but would render them immune from challenge in an embarrassing and unnecessary way.

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