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Lord Whitty: The noble Earl is not going to catch me that way. He will know that current convention is that the words of the Minister, which are always carefully chosen, have almost equal weight in court to what is on the face of the legislation. The area is complex and the remarks of the noble Viscount, Lord Bledisloe, and others indicate that.
As the noble Earl's amendment suggests, the job of identifying what falls within these categories must rest with the Countryside Agency. It is its responsibility to come forward with a definition and approach which can be seen to be reasonable and against which legal judgments might have to be made in future. The amendment mentions "clear definition" but clearly there is scope for judgment in individual cases. However, the Countryside Agency will be responsible and it and the Countryside Council for Wales are working on draft definitions.
The National Countryside Access Forum, which represents a wide range of people, including landowners and user groups, has already discussed the paper prepared by the Countryside Agency setting out draft definitions of the categories of open countryside and the agency will consult more widely before it concludes the definitions.
The initial definitions, contained in the consultation paper to which the noble Earl referred, have been subject to comment and criticism. They are not entirely related to vegetation but there is criticism that they are predominantly so and there is therefore a need for a wider approach.
As regards coming forward with a definition of "open countryside" which includes enclosed land--the point raised by the noble Viscount, Lord Bledisloe--little downland is not enclosed. Most land is enclosed and the only question is of size and degree of enclosure which is irrelevant for the purposes of mapping open countryside. The precise parameters for identifying moor, heath and down require careful consideration. The original drafting proposals would need to be reviewed not only in the light of representations made but also in the light of the pilot mapping exercises
Lord Roberts of Conwy: The Minister said a few moments ago that in England the Countryside Agency was working with the Countryside Council for Wales on the matter of definition. The noble Lord will be aware that the Countryside Council for Wales is responsible to the National Assembly for Wales. I can foresee a situation in which perhaps the National Assembly disagrees with any agreement reached between the Countryside Agency and the Countryside Council for Wales. Therefore, does the Minister agree that it would be far better to define these matters in statute rather than leave it to these bodies?
The Earl of Onslow: In effect the Minister has told the Committee that an Act of Parliament is to give people the right to roam on land which cannot be defined. The Minister refused to give me a definition of what is in the Bill. If the noble Lord does not know where people will be allowed to go, surely he should find out the Government's intention and return to the House. To pass an Act which says that one can walk on a heath or open land when that is not defined is not good law.
Lord Whitty: The Bill defines a process for arriving at a geographical description and mapping the land to which these rights will apply. It is that process which the Committee is being asked to accept. Part of that process is that in reaching their mapping decisions the countryside agencies have a clearer definition--that is what they are working on currently--than we have provided at present or in the initial consultation paper. However, that is part of the same process. It is not just a question of definition. That definition must then be subject to a process of representation, applications for modification and appeal. Therefore, in all those respects the countryside agencies must operate reasonably. It is not just a question of definition. If one recorded on the face of the Bill solely the question of definition one would restrict that process and thereafter the rights of interested parties to participate effectively in it.
I do not believe that there is an enormous amount between the objective of the noble Earl's amendment and what is being required of the countryside agencies. However, if it was limited to definition it would cause a problem. As to the possibility of the Countryside
Viscount Bledisloe: The Minister told the Committee that the Countryside Council for Wales and the Countryside Agency in England were formulating definitions. Does he recognise that unless he accepts an amendment on the lines of that moved by the noble Earl the countryside agencies' definitions will be writ in water? If anyone seeks to challenge them the court will have to decide what a down is. The agency's definition of a down will just be an argument and will be of no avail. It is for the appropriate authority to decide whether a piece of land comes within a definition, but if one puts a word in a statute and says nothing else it is for the court to decide what it means. The Minister is simply inviting every landowner and, contrariwise, every ramblers' association to challenge the map by taking the matter to court and arguing that, although the agency has said that certain land is downland, its definition is not really what "downland" means.
Baroness Byford: Perhaps I may say that the Minister has twice referred this evening to the pilot studies that are going on. I should be grateful if he would remind the Committee exactly what the pilot studies are, what areas they cover, the timetable they cover and whether in fact they will have finished being pilot studies and have any relevance to the Bill before it is passed. I think it is important that we understand where we are at the moment. The Minister also said in response to my noble friend's amendment that there was not an enormous amount of difference between us. If there is not, and as the amendment seems to be receiving support from around the Chamber, would it not be sensible to accept the amendment?
Lord Whitty: The amendment is incomplete in relation to what the duties of the countryside agencies will be. Not only do they have to, as I say, act reasonably in drawing up the definition, but wherever the definition appears there will always be the possibility of that being challenged. I do not accept the point of the noble Viscount, Lord Bledisloe, that whoever draws up the definition--whether it is formally on the face of the Bill, whether there is a responsibility defined on the face of the Bill or whether the agencies themselves draw it up--they can be challenged. No one is restricting that challenge, provided the defence is that they have acted reasonably
The answer to the question about the pilot studies is that they will not be ready in the next few weeks. In fact the contracts are about to be let. There is a pilot mapping exercise in a number of areas. I regret to say to the noble Lord, Lord Roberts, that I do not have the pilot areas for Wales in front of me. In relation to England they are Kent, Surrey, East and West Sussex, Lancashire, Cheshire, the South Pennines and the Peak District. Those pilot mapping studies will look at the methodologies for mapping. They should be concluded by early next year. The lessons from them will inform the process after Royal Assent on the statutory mapping areas. They will last less than a year. We shall then inform that process on the basis of those studies. I recognise that that question was raised earlier and apologise for not answering it sooner.
Lord Rotherwick: Is there any way of challenging the definition that the Countryside Agency might come to at a later date? Also, when the Countryside Agency decides what downland is, will that be set in stone? Will no one be able to change or challenge that definition?
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