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Lord Marlesford: My Lords, I support both amendments. Of course there is a difference between them. But, more importantly, there is a similarity. The Bill removes property rights which previously existed. Both amendments seek to ensure that there is not abuse of that transfer of property rights. That similarity is, I suggest, more important than the difference. The noble Baroness says that nature conservation is different; of course it is. But it does not mean that it is more important. It is very important, but so is the point made by my noble friend Lord Peel. I believe that the Government should accept the amendments. I support them both.
Noble Lords will remember that in Committee we endeavoured to remove some of the more trivial and minor provisions in Schedule 2. Members of the Committee did not agree. But the user whose child picks a dandelion or creates a small pool in a stream would be subject to the penalty proposed in the noble Earl's amendment. In the best of all worlds, landowners would use any powers they have in the best possible way. However, the proposed amendment might inflame a situation where someone infringes the provisions in a minor way. It might be unhelpful. We believe that the amendment is too widely drawn.
I understand why the noble Baroness, Lady Young, has brought forward the amendment. We are surprised that the Government have not given more protection as regards the conservation aspect. Indeed, when we moved Amendment No. 98 in Committee, the noble Lord, Lord McIntosh, gave a reasoned explanation as to why it could not be accepted. I shall be interested to hear his reasons if he cannot accept the noble Baroness's amendment.
Baroness Byford: My Lords, I support Amendment No. 3 to which I have added my name. The response from almost all sides of the House underlines the belief that there should be some form of sanction for those deliberately persistent offenders for whom there is at present no such sanction in the Bill. I urge noble Lords to accept Amendment No. 3. It is very important.
I do not regard the amendment of the noble Baroness, Lady Young, as any less important. I hope that the Government will consider it sympathetically. Perhaps I may say this to the noble Baroness, Lady Miller. We should all love to live in an ideal world. Sadly, we do not. The thrust of our debates in recent weeks has been to balance the freedom to enjoy access over land with the restrictions, codes of practice, understandings and responsibilities that people have in the countryside. I am disappointed by the response from the Liberal Democrat Benches to my noble friend's amendment.
I am happy that my Amendment No. 34 is grouped with these amendments. I have raised this issue throughout the passage of the Bill. Many people believe--I was asked again on radio about it--that access is available now. Farmers in different areas refer constantly to people saying, "We have a right to be here". We know that they do not. I fear that the Minister will tell me that there is no need for my amendment. He indicated previously that he understands the wish underlying my amendment but I should like again to bring the matter forward.
As regards interpretation in a court of law, the noble Lord may well be right. But the Bill is most unusual in that it applies directly to the whole population. We are not talking about two or three people but millions. The Government cannot control the interpretation that hundreds will give to the Bill. It is not possible to identify those who will correctly take advantage of the
Much our debate has centred on the provision of information: how open country will be defined; what will be shown on maps; what closures will be allowed and how they will be handled; how walkers will know what tracts of land are available to them on any given day and at any given time. The wording of the Bill has a part to play in helping walkers to benefit from those new rights.
The House has done a good job in building on the Bill that came to us. I urge your Lordships to make sure that the result of our deliberations is a Bill that is clearer and crisper than when it arrived. However, I am still concerned that access to access land does not start until two months after Royal Assent, as I have said before, and will not be completed for between two and five years after that. The Bill should tell the public clearly and unambiguously that they are not entitled to avail themselves of open access until the Secretary of State says that they can. Until that time, sanctions must remain in place to enforce the existing law. I support all three amendments.
Lord McIntosh of Haringey: My Lords, I start with Amendment No. 34, which is perhaps the least contentious of the three and the easiest to deal with. A large number of people think that they will have a right of access as soon as the Bill is passed. It will be the responsibility of the Government, the Countryside Agency, the access authority, the ramblers and everybody else to be realistic about what will happen. Disappointingly for many of us--perhaps less disappointingly for others--the process will take a long time. Even the fast-track procedures for mountains and registered common land will take a long time. The remaining procedures involving the complete mapping process will take even longer. The right will not be granted straightaway. To that extent the noble Baroness, Lady Byford, is right and it is important that wrong ideas should not circulate about that.
However, her amendment is not necessary. I assure her--as it will be our responsibility to assure the public--that the Bill does not change the existing law on trespass. Existing sanctions will continue to apply until the new right of access comes into effect and thereafter. We are not changing trespass law.
On Amendment No. 3, we have made it clear in previous debates that we do not believe that a mere breach of a restriction that results in no harm or damage should be the subject of a criminal penalty. I agree that the amendment is more moderate than some that were tabled at earlier stages, but we still have serious concerns about the principle behind it. The amendment follows the "three strikes and you're out" principle, although I accept that it is limited to three strikes on one day. However, the Bill is stricter. We have provided for "one strike and you're out".
The noble Lord, Lord Renton, and others gave examples. Many of the restrictions in Schedule 2 are already criminal offences in certain circumstances. Breaches of the others could be very minor, such as bathing in a pool or stream or allowing a dog to roam on an extended lead. Those are no more than simple trespass in the absence of any damage being done. However, the amendment would apply to them regardless of whether damage was done. Despite what the noble Lord, Lord Monson, the noble Lord, Lord Mancroft, or anybody else says, the amendment would criminalise trespass.
Of course we accept that any walker who is in breach of any of the restrictions should lose their right of access. That is part of the structure of the Bill. We have extended the provisions by making the walker's mere presence unlawful for 72 hours after the breach of any restriction. That 72-hour provision was a concession by the Government. The noble Baroness, Lady Byford, said in Committee that walkers who were aware that they may lose the right of access for 72 hours were likely to think twice before they contravened a restriction. We agreed and tabled an amendment to that effect on Report. The amendment was welcomed.
The noble Earl, Lord Peel, the noble Lord, Lord Mancroft, and the noble Baroness, Lady Mallalieu, talked about balance and quoted Michael Meacher. The noble Earl, Lord Peel, said that there were criminal sanctions against landowners who obstructed access and therefore there was no balance. There is no general criminal sanction. The only criminal offence is when a landowner fails to comply with a court order to remove an obstruction, following the service of at least two access notices. We have gone a long way to preserve balance.
Amendment No. 3 would make a breach of any restriction a criminal offence. It is not limited to repeats of the same restriction. Someone who was warned about two different breaches, however trivial--stepping off a path or bathing in a stream--would be liable to a fine. Someone could find themselves in breach of a criminal law simply for playing a game of football without doing any harm to anyone or to the land. A criminal penalty would be attached to any restriction, including discretionary restrictions imposed by landowners. A landowner could even say that only members of the Country Landowners' Association--or members of the Labour Party--could come on their land. Anybody else on the land would be in breach of a restriction and the amendment would kick in.
We have explained that landowners have existing powers of injunction. It may be easier to obtain an injunction than to pursue a criminal prosecution when they are not able to persuade the police to do so. With the greatest respect to my noble friend Lady Mallalieu, I do not agree with her. An injunction can be sought against a simple trespass, particularly if it is repeated and potentially damaging. It is not necessary to prove damage to justify an injunction. The case could be decided on the balance of probabilities.
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