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" In section 76 (meaning of custodial sentence), in subsection (1) after paragraph (b) there is inserted—
"(bb) a sentence of detention for public protection under section 198 of the Criminal Justice Act 2003;
(bc) a sentence of detention under section 200 of that Act;"."

On Question, amendments agreed to.

Baroness Anelay of St Johns moved Amendment No. 122:


On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 123:


    Page 386, line 34, at end insert—


"( ) In section 42 (interpretation of Part 2), in subsection (2)(a), for "section 119 of the Powers of Criminal Court (Sentencing) Act 2000" there is substituted "paragraph 8(2)(a) or (b) of Schedule 11 of the Criminal Justice Act 2003".

On Question, amendment agreed to.

17 Nov 2003 : Column 1827

Schedule 35 [Repeals]:

Baroness Scotland of Asthal moved Amendments Nos. 124 to 146:


    Page 418, column 2, leave out lines 8 to 11 and insert—


    "In section 54(1), the words "and record or cause to be recorded"."
    Page 420, line 19, at end insert—
    "Firearms Act 1968 (c. 27) In Schedule 6, in Part 2, paragraph 3."
    Page 420, line 26, at end insert—
    "Criminal Law Act 1977 (c. 45)In Schedule 12, the entry relating to the Firearms Act 1968 (c. 27)."
    Page 420, line 32, column 2, at end insert—
    "In section 8B(6)(a), the words "commits or"."
    Page 421, line 14, column 2, at end insert—
    "In Schedule 7, paragraph 73."
    Page 421, line 14, at end insert—
    "Criminal Justice (Amendment) Act 1981 (c. 27)The whole Act."
    Page 421, line 16, at end insert—
    "Contempt of Court Act 1981 (c. 49)Section 4(4)."
    Page 421, line 26, at end insert—
    "Criminal Justice Act 1982 (c. 48)Section 61.
    In Schedule 9, paragraph 1(a).
    Mental Health Act 1983 (c. 20) In section 52(7)(b), the words "where the court proceeds under subsection (1) of that section,"."
    Page 421, line 34, column 2, at end insert—
    "In Schedule 1, paragraphs 2 and 3."
    Page 421, line 43, column 2, at end insert—
    "In Schedule 2, paragraphs 1, 9 and 14."
    Page 422, line 8, column 2, at end insert—
    "Section 33."
    Page 422, line 12, column 2, at end insert—
    "Section 144.
    In Schedule 15, paragraphs 10, 66 and 104."
    Page 422, line 16, at end insert—
    "Courts and Legal Services Act 1990 (c. 41)In Schedule 18, paragraph 25(5).
    Broadcasting Act 1990 (c. 42)In Schedule 20, paragraph 29(1)."
    Page 422, line 17, column 2, at end insert—
    "Section 55(1)."
    Page 422, line 18, column 2, at end insert—
    "In Schedule 11, paragraph 25."
    Page 422, line 21, column 2, at end insert—
    "In Schedule 9, paragraphs 12, 17(c), 18(d), 25, 27, 29 and 49.
    In Schedule 10, paragraphs 40 and 71."
    Page 422, line 28, column 2, at end insert—
    "Section 44(3).
    Section 45.
    Section 49(4)."

17 Nov 2003 : Column 1828

    Page 422, line 29, column 2, at end insert—
    "In Schedule 1, paragraphs 2 to 5, 8, 10, 12, 13, 15 to 19, 22(3), 24 to 26, 28 to 32, and 34 to 38."
    Page 422, line 30, at end insert—
    "Sexual Offences (Protected Material) Act 1997 (c. 39)Section 9(1)."
    Page 422, line 31, column 2, at beginning insert—
    "Section 47(6)."
    Page 422, line 35, column 2, at end insert—
    "In Schedule 8, paragraphs 8, 37, 40, 65 and 93."
    Page 422, line 35, at end insert—
    "Access to Justice Act 1999 (c. 22) Section 67(3).
    In Schedule 4, paragraphs 16, 39 and 47.
    In Schedule 13, paragraphs 96, 111 and 137."
    Page 422, line 41, column 2, at end insert—
    "In Schedule 9, paragraphs 62, 63, 64(2), 65, 91 and 201."
    On Question, amendments agreed to.

Baroness Scotland of Asthal: My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)

Lord Renton: My Lords, I feel bound to say to begin with that we all much admire the ability, the patience and the fortitude of the noble Baroness, Lady Scotland. She has had a tremendous task. I am going to have to comment, I am afraid, on the results of all the efforts that have been made on this colossal Bill. I should also like, although he is not with us at the moment, to pay my tribute to the noble and learned Lord the Attorney-General, who has also been diligent and helpful. However, I find it hard to believe that two such diligent and able Ministers had to use their initiative in creating such a chaotic and long Bill as this has become.

I confess, if I may, that I have been in Parliament 58 years and taken part in pretty well every Bill dealing with criminal law and procedure during that time, since 1945. Never in all those years has there been such a long and detailed Criminal Justice Bill as this, which amends lots of previous legislation and adds many clauses to what is to be on the statute book. When it came to us, the Bill was 374 pages long. By the time we had dealt with it in Committee for 11 days and on Report for five days, it became 440 pages long. Even on Third Reading the Government have had to move so many amendments that it will become another 20 pages long. I find it a bit worrying that Members of the House of Commons will have only one day in this Session, which is nearing its end, to consider this vast range of amendments. They are not merely drafting amendments of previous legislation, although there are scores of those, they are nearly all government amendments, most of them amending previous legislation, and some of them are, as we know from our discussions, very controversial.

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For centuries it has been the fundamental principle of our criminal cases that ignorance of the law is no defence. But now we have reached a stage where knowledge of the criminal law, even for a person of enormous ability, is impossible without referring to the previous statutes and seeing how they are amended and added to. The Government have created this situation. I say that it is vital that the Government, as soon as possible, early in the next Session, get started on the formation of a consolidation Bill; otherwise our criminal law will simply be a mystery, a mass of important Bills that have been amended by other Bills and amended by this Bill. That is not the way in which a parliamentary democracy such as ours should legislate. We have to make the legislation, especially in criminal law, understood by the people at large. Otherwise, the courts will no longer be able to say that ignorance of the law is no defence.

So I implore the Government to take note of what I have said and to get on with it as soon as they can in the next Session.

Baroness Scotland of Asthal: My Lords, I take this opportunity not only to thank the noble Lord for his kind words—of course I note everything that he said—but to commend the sterling efforts of the noble Baroness, Lady Anelay, and all those who led for the Liberal Democrats, who have been more in number; nevertheless the noble Lords, Lord Thomas of Gresford and Lord Dholakia, and others should all be named in dispatches. I thank each and every one of them for the comradely way in which they have addressed some very difficult and technical issues.

On Question, Bill passed, and returned to the Commons with amendments.

Wild Mammals (Protection) (Amendment) (No. 2) Bill [HL]

Read a third time, and passed, and sent to the Commons.

Access to the Countryside (Exclusions and Restrictions) (England) Regulations 2003

5.47 p.m.

Earl Peel rose to move, that an humble Address be presented to Her Majesty, praying that the order, laid before the House on 24th October, be annulled (S.I. 2003/2713).

The noble Earl said: My Lords, the exclusions and restrictions which I wish to draw to your Lordships' attention this evening refer to the closure mechanisms available to the owner of land in England under the Countryside and Rights of Way Act and were laid before the House on 24th October. Broadly speaking, these closure provisions are open to the owners of access land, under the Act, in order to safeguard the public from management activities that might cause a threat to their safety and to enable the owner to conduct his or her business in an unencumbered

17 Nov 2003 : Column 1830

fashion in cases where the presence of people is likely to cause difficulties. I start by declaring an interest as an owner of access land which will be directly affected by the Act.

As such, these regulations have very considerable significance to both parties. It is, I would suggest, vital that they are implemented in a quick and efficient fashion, allowing for flexibility and practicality. Many owners will regard such closure orders as an essential means of carrying out their business. I remind your Lordships of the firm commitment given by the then Minister, Michael Meacher, that it is not the Government's intention for the right of access to impede the economic well-being of those who live and work in these areas or that the right of access would incur costs on owners. I believe that unless the Minister is prepared to make concessions, then both those commitments are likely to be undermined.

Under Section 22 of the CROW Act, entitled persons are allowed either to close access areas or to restrict their use for up to 28 days per year, although there are considerable limitations on when the 28 days can be taken. National holidays and certain weekend closures are precluded under the Act. Whereas there is no need for the relevant access authority to give permission for such closures, the owner has to give notice to the access authority for such a closure to be legitimate.

However, under the Act, if the land in question is subject to an agricultural tenancy, the tenant becomes the owner and is the only person qualified to apply for closure under the 28-day rule. Therefore, the situation will arise, particularly in cases where the actual owner of the land may manage that land for, say, sporting purposes, when he will have no right to the 28-day closure, even though the tenant, who would have the right under the Act, may simply graze the land and would not be involved in the principal management activities of the land such as bracken spraying, heather burning or predator control, which are carried out by the landlord. I suggest to your Lordships that we have a considerable muddle in that respect.

Furthermore, in such circumstances the owner will wish to close the area on shooting days, not simply to ensure that the shoot is not disturbed by walkers but, more importantly, to ensure that the public's safety is not compromised. It is worth remembering the very substantial income that is generated by shooting, particularly on grouse moors, most of which will be subject to the new rights of access. That income is ploughed back into the management of these areas and benefits all, not just those who live and work there but the public who enjoy those areas. In reality, as regards much of the access land, the owner will need to close the land more than the tenant, who is the only person under an agricultural tenancy who has the right to do so under the Act.

To make matters more complicated, there is the question of sporting rights, and with them much of the management of the land to which I have referred. These could be let to a third party who will be in an even more precarious position concerning applying for

17 Nov 2003 : Column 1831

closure under Section 22. The Minister will be aware that under that section in the Act, provisions can be made through regulations for all such people to be added as interested persons. I urge the Minister to consider this option most seriously and to amend the regulations accordingly; otherwise, I suggest that we shall have considerable muddle, confusion and at times bad feeling, which is the one thing I should have thought we want to try to avoid.

On Regulation 4, which applies to the 28-day closure, the Government have not left much room for manoeuvre. Apart from the difficulties regarding the owner of the land that is subject to a tenancy, which I have already described, the regulations state that five days' notice must be given before a closure or restriction is permitted. I appreciate that the regulations allow for two hours' notice for closures of four hours or less, and for five-day closures for up to five hectares of land. I acknowledge that that is useful. However, many activities such as bracken spraying or heather burning involve large areas of land to be tackled at very short notice. I suggest that five days' notice is a nonsense as, of course, the weather is an all-important factor.

All I ask is for the Minister to emulate the regulations that have been produced in Wales which offer a much more flexible alternative. There, the owner can pre-register the relevant information and then just give notice of the date and the time of the closure the day before by telephone. There is no restriction on area or period of closure or registration. The access authorities can waive the notice period where they are satisfied that it was not reasonably practical for the entitled person to comply with the notice requirements. I suggest to the Minister that if it is good enough for the Welsh, it is good enough for the English.

I now turn to the regulations affecting Sections 24 and 25 of the Act. The Act allows anyone with an interest in the land to apply to the relevant access authority for a closure or restriction outside the 28 days when it is deemed necessary for either land management purposes—Section 24—or to avoid the risk of fire or danger to the public—Section 25. However, in contrast to Section 22—the 28-day rule—the owner has no right to such closures and permission rests entirely at the discretion of the relevant access authority.

Regulation 10 deals with such closures by providing the access authority with a determination period of up to six weeks, or four months for long-term closures of six months and more. I suggest to the Minister that these regulations are wholly unrealistic, particularly when one considers that in many cases those who are prevented from applying for closures under Section 22—the 28-day rule—have recourse only to these two sections in order to close land for management purposes and, indeed, to protect the general public. In such cases the owner of the land subject to a tenancy—where the tenant is the owner under the Act—the

17 Nov 2003 : Column 1832

sporting tenant and, say, a commoner with grazing rights have no rights under Section 22—their only recourse is through Sections 24 and 25.

Management of stock, heather burning, spraying and predator control all require fairly instant decisions. To have to wait for up to six weeks for an approval is, frankly, nonsense. It seems inconceivable that these provisions will not be widely used and, as such, if the Government are to take a pragmatic and practical stance, these regulations will need radical revision.

However, there is an additional and major concern with the draft guidance issued by the agency on how it will exercise its discretion about closures under Sections 24 and 25. It is suggested that it will not generally grant closures unless informal management techniques have been tried first. I am curious to know what informal management techniques mean. Who will pay for these informal management techniques? What happens if they fail? Who will pay for the failures? We should not move into the realms of experimentation. We are talking about people's livelihoods and, indeed, the protection of the public. Will the Minister at least give an assurance that the farmer or landowner will not be out of pocket if such a potentially reckless approach fails and that proper closure mechanisms will be enforced in the absence of success?

I would like to make reference to another difficulty, of which I am sure that the Minister is well aware as it has been flagged up by the CLA on a number of occasions. Under the Animals Act 1971, an owner of livestock is liable for injury caused to a member of the public. As I understand it, even if the owner has taken all reasonable precautions and an injury occurs, he can still be liable under the Act. However, if a closure is in place, that Act does not apply, because anyone who ignores the closure becomes a trespasser and the owner is then not liable under that Act. My legal skills do not run to whether he or she will be liable under another Act, but under the Animals Act liability would cease if a closure order were in place.

It is essential when an owner applies for a closure, based on dangerous livestock, that the agency grants the request. Let us not forget that dangerous livestock could well cover cows with calves at foot, or a bunch of young and rather over-excitable livestock in the presence of a dog. I simply raise that point as it is something that the regulations should cover, as it will present genuine difficulties for farmers and walkers alike unless properly addressed.

I shall move on to my final point, and the one to which I attach the greatest importance. For the sake of good land management, for the sake of those who live and work in access land, and for the sake of the public who wish for enjoyment in the knowledge that they can walk safely, there has to be in place under the Act the most effective means of informing the public when the land is open and when it is closed. I should have thought that that was the one clear overriding objective that would unify all parties. I am bound to say, therefore, that it comes as rather a rude awakening

17 Nov 2003 : Column 1833

to many, myself included, to find in the regulations that the Countryside Agency merely has to place a notice on a website informing the public of any closure orders that might be in place. Website information may be used by some, but the majority of walkers, particularly the casual and those on holiday, are highly unlikely to be carrying their laptops in their rucksacks.

We tried—goodness, we tried—to persuade the Government to introduce statutory access points when we were discussing the then Bill but, sadly, without success. In my view, that is the biggest failure of the Act, as it was always going to be the most effective means of informing the general public about what was going on on access land. However, under the CROW Act, there are powers for the local authority to erect signs, but sadly no duty.

Surely the Minister can see the merit in having some common signage system that alerts the general public when access areas are closed, in conjunction with suitable signs in appropriate positions informing the public of what is happening. I always felt that one of the great advantages of statutory access points would be the ability of the access authorities to explain to people what was happening on the land, which would have been a more interesting experience for them.

The noble Lord knows that certain suggestions have been put forward about how a more comprehensive signage system could be worked out. If there is no guidance for such an objective in the regulations, the access authorities are likely to ignore the option, and it will fall on those who own or manage the land to pick up the pieces and the cost of informing the public. That goes against all the assurances made during the passage of the then Bill. I ask the Minister to give a commitment that the regulations will allow for access authorities to help with provision of signs and that the necessary finance will be made available.

The regulations reflect the total lack of resources that the Government are prepared to commit to making the Act work. That is the root cause of the difficulties that we have through the ineffectiveness and paucity, if I may use that word, of the regulations. Unless the public can enjoy the countryside in the knowledge that they are safe, and have confidence in where they go and what they can do, the Act will fail. Equally, land managers must be able to manage without fear of interference or worry. That means proper sympathy and understanding by the access authorities, with the necessary resources to carry out their full responsibility.

Failure to meet those two objectives will lead only to conflict and, as I have already said, that is the one thing that we must all endeavour to avoid. The regulations must reflect a greater sense of reality and urgency, and they need considerable reappraisal. I hope that the Minister will accept that. He knows that I have great concerns about the Act, but I think that he also knows that, above all, I want it to work. I beg to move.

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Moved, That an Humble Address be presented to Her Majesty, praying that the order, laid before the House on 24th October, be annulled (S.I. 2003/2713).—(Earl Peel.)


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