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Lord Lester of Herne Hill: My Lords, I have not previously spoken in any of these debates and my only reason for doing so now is to respond to the claim made by my old friend, the noble Lord, Lord Brittan of Spennithorne, repeated by the noble Lord, Lord Kingsland, that,
I gave notice to the noble Lord, Lord Brittan, that I intended to reply. I am sorry that he is not in his place but he has a marvellously powerful understudy in the form of the noble Lord, Lord Kingsland.
In my view--I shall make this as brief as I can--there is no such powerful case for a general right to compensation under this Bill, and this amendment, like the previous versions, is wholly inappropriate and fails to strike a fair balance. The right to enjoy one's property, as the Minister rightly conceded, without arbitrary interference by the state is a basic civil right. It is anchored in our common law and in Article 1 of the First Protocol.
In view of the way in which Conservative noble Lords argued their case under this Bill, and because it shows what past practice is like, I should like to recall, first, that the government of the noble Baroness, Lady Thatcher, was distinctly unenthusiastic about giving full effect to the convention guarantee on the rights to property. It was that government which persuaded the European Court of Human Rights to give a narrowly restrictive interpretation to the property rights guaranteed by Article 1 of the First Protocol. I know that because I acted as counsel for one of the shipbuilding companies, Vosper, that was nationalised by the Labour government under the Aircraft and Shipbuilding Act.
In opposition, the Conservatives fought a vigorous campaign against that nationalisation and the effect of their long, protracted campaign was to render the compensation formula under the Act outmoded and unfair for some of the nationalised industries. The Conservatives promised, in opposition, that when returned to office they would reverse that unfair effect and provide full compensation to the victims. They did
But that was not all. In 1996 it was another Conservative government who refused to provide compensation for those in the business of buying cattle heads from abattoirs and processing head meat--a dreadful trade--whose business was made illegal by the ban on the sale of specified bovine material for human consumption. The Conservatives were also unsympathetic in 1997 when I moved a modest amendment that the noble Earl, Lord Peel, will remember to the Firearms (Amendment) Bill in order to provide compensation to registered firearms dealers.
I cite those examples to show that the Conservatives have been certainly no more robust, certainly no more generous in office than their Labour counterparts in upholding the principles for which the noble Lord, Lord Kingsland, spoke this evening.
Turning to the Bill, creating general rights of access across the countryside, of course, interferes with the use of the land of property owners affected by the Bill. But that is not in itself a breach of Article 1. A fair balance is required by that guarantee as by the convention as a whole. A fair balance is between the demands of the general interest and of the community and the requirements of the protection of the individual's fundamental rights.
The European Court of Human Rights made it quite clear that a particularly wide latitude is to be given to the public authorities of the state in making legislative choices about the control and use of property. When the noble Lord, Lord Kingsland, said that this was a deprivation of property under the first rule, if he will allow me to say so, that is palpable nonsense and I shall not even deal with it. Plainly it does not fall within the deprivation rule. We are talking about the control and use of land, not the seizure of land by the state.
But the discretion that we in Parliament, or the Government, enjoy is not unlimited. Individuals should not be expected to bear excessive burdens out of all proportion to the state's legitimate aims on the rights of others. One of the ways of striking a fair balance is by providing fair compensation where the particular circumstances require. But it is very rare to require compensation in cases involving control of use rather than the outright taking of property by the state. Perhaps I may give one example to which the Minister referred at a previous stage without explaining what he had in mind.
In the case of Baner v. Sweden in 1989 the European Commission on Human Rights considered a complaint that the applicant's exclusive right to fish using hand tackle had been transformed so that everybody was entitled to fish with hand tackle in the local lake. He complained that the legislation had taken away his exclusive fishing right without compensation--the kind of complaint being made by the noble Lords, Lord Brittan and Lord Kingsland.
The Commission made it clear that a right to compensation is not inherent in the control of use provision in Article 1. What matters, it explained, is the severity of the concrete economic loss caused to particular individual property owners by the legislation. On the facts of that case it found the interference to be comparatively minor and, even though the applicant received no compensation, it decided the interference was fully justified.
Perhaps I can mention another example. I acted on behalf of the meat processors affected by the 1996 BSE ban in a claim before the Commission. Again it was unsuccessful because the Commission did not accept that, overall, my clients suffered an excessive burden. It similarly threw out a claim for compensation by wholesalers and distributors of firearms.
During the Second Reading debate, the noble Lord, Lord Brittan, relied heavily--as does the noble Lord, Lord Kingsland--on the French case of Chassagnou, one of the few cases in which a successful challenge was made under the control of use provision of Article 1. As the Court went out of its way to make clear, it was a most unusual case. The applicants belonged to the anti-hunting movement and complained of the effects of the legislation that had transferred hunting rights over their land to others without their consent. They were not seeking a right to hunt but to have their land free from hunting. The European Court decided that to compel small landowners to transfer hunting rights over their land so that others could make use of them in a way which was totally incompatible with their beliefs as anti-hunting people imposed a disproportionate burden that was not justified. The Court's reasoning depended in part on the lack of provision for compensation.
That unusual case was a rare example--there have been others--where the Court regarded the absence of compensation as relevant. What those European cases and others show is that there is no general right to compensation. The answer depends on the extent of the interference, the degree of concrete economic loss and all the surrounding circumstances, including the general framework of the legislation. Of course, the framework of this legislation is careful in striking a balance between conflicting interests.
However, I want to emphasise the fact that Article 1 does not require a general right of compensation for loss and damage caused by the creation of public rights of access. Yet that is precisely what the amendments tabled by the noble Lords, Lord Brittan and Lord Kingsland, seek to provide. I accept that there may be exceptional cases arising under the Bill in which an owner or someone with an interest in land might be able to claim that his property rights have been unfairly interfered with because the impact of the Bill had been so detrimental to the individual affected.
If the Government are right, such cases of unfairness and injustice will not arise. But if they are wrong--and the noble Lord, Lord Kingsland, fairly points out that they may be--the Human Rights Act will come to the rescue in a case of real unfairness involving a breach of Article 1. The alleged victim will be able to rely on
That is not all: the alleged victim will be able to bring proceedings against a defaulting public authority under Section 7(1)(a) and to claim damages for breach of a duty imposed by Section 6. In other words, the Human Rights Act provides protection for the aggrieved owner where the particular circumstances require the payment of compensation. And it does so in a way which avoids creating a general right to compensation for diminution in land value or, still worse, an indemnity for the costs incurred as a result of the right of access to land of a kind advocated by the noble Lord, Lord Brittan, and the noble Viscount, Lord Bledisloe. Therefore, if the worst fears of Conservative Peers are realised, the remedies will be at hand without the need for an amendment of this kind.
Finally, there is a world of difference between a carefully tailored remedy in an exceptional case under the Human Rights Act and the sweepingly broad general right to compensation or diminution in land value sought by the amendment. I believe that the Minister was right in certifying that the Bill is compatible with the convention right to property.
Lord Renton: My Lords, whether or not the noble Lord, Lord Lester, is right in his argument and whether or not Article 1 applies, I suggest that the Government should regard themselves as bound by the precedent created by a Labour government in 1949. I well remember it because I was in the other place at the time. Under the National Parks and Access to the Countryside Act 1949, the then government provided exactly what my noble friend Lord Kingsland is suggesting should be done under this Bill; namely, that compensation should be paid when the public have been given a right of access over land described in that Act.
I should have thought that the Government would be ashamed of treating the matter differently under this Bill from the way it was treated by their predecessors in 1949 under that Act. I hope that if the Government do not consider themselves bound by that precedent the Minister will say why not.
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