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Baroness Young of Old Scone: I thank the Minister for giving way. If an offence has occurred and damage has taken place, of course the normal criminal law will intervene. The point I was trying to make is that if there has been an exclusion or restriction order to prevent someone damaging wildlife interests--by disturbance or by other means--and that order is infringed, it could well be that the damage will have occurred in an irretrievable way by the time the sanction can be applied. By putting provisions in the Bill that will prevent people creating conservation damage, we are trying to stop that happening. A sanction that merely states that once the damage has occurred, criminal proceedings can take place does not act against someone who, for example, repeatedly goes on to a patch of land where disturbance is a real issue--and has been shown to be a real issue by consultation with a wide range of interests--and a restriction or an exclusion has been agreed.
Lord McIntosh of Haringey: There are two answers to that. First, where there is a threat to wildlife or a conservation issue, there are all kinds of provisions in the Bill for prior exclusion. It is not necessary to resort to by-laws; it could be a part of the structure of the access provisions. Therefore, prevention--which is what my noble friend is rightly talking about--is achieved in that way in other parts of the Bill.
My second point is that these amendments, which are about extending the exclusion where no offence other than trespass has taken place, will not solve that problem. If damage to nature and wildlife has taken place, it does no good to extend either the time-scale or the geographical scope of exclusion, which is what the amendments would do. What is needed then are the criminal sanctions that we already have. We simply do not believe that someone who breaches what may be a trivial restriction and thereby becomes a trespasser should lose the right of access to all access land, which is what is suggested in at least one amendment.
On a practical level, it would simply not be possible to enforce a sanction. There is a good chance that if a person is asked to leave an area of access land because he has breached a restriction, if he decides to return later in the day he will be identified by the owner or the owner's agent and challenged. But if he lost access to all access land, it is unlikely that anyone would even know that he had breached a restriction on other land; therefore, a landowner would have no reason to know or even wish to ask him to leave.
That point was brought out by the noble Baroness, Lady Byford. She asked how we should know that a person has breached a restriction somewhere else? I am afraid that she drew the wrong conclusion. Even a walker might not know that a restriction had been breached if the owner of the land on which the breach took place was not bothered by it and allowed the
Lord Elton: As a stranger to the Bill and not a landowner, perhaps I may ask the noble Lord a question. Does not the Bill protect tenanted land as well? The noble Lord has referred throughout his delivery while I have been listening to him only to landowners, as though the Bill is designed to protect people like my noble friend Lord Peel. It is surely designed also to admit people to the land of much smaller landholders who may be regarded rather differently by the public.
Lord McIntosh of Haringey: We debated this issue last week when the noble Lord was not present. I agree that the definition of ownership is counter-intuitive, but it includes people with rack rent tenancies.
If a walker who has been in breach of a restriction moves to other land in different ownership, he must continue to abide by the restrictions or he will lose his right of access to that land as well. I suggest that this is a requirement which landowners and walkers will be able to understand. Indeed, I find it difficult to understand what else we could do. Without a national network of digital cameras and fax machines, it would be impossible for a landowner to be aware of who had lost his or her right of access by means of a breach of restrictions on other people's estates.
Lord Rotherwick: Perhaps I may intervene in an attempt to help the situation. Surely, with IT as it is now, it would be simple, if such a situation occurred, for a landowner to indicate the fact on a website available to all other landowners. Surely it would be right, if someone created such a breach of sanctions on one land, for the sanctions to be relevant to any adjacent lands as well.
Lord McIntosh of Haringey: The idea horrifies me. That is Big Brother with a vengeance. I mentioned digital cameras and fax machines, and the noble Lord extended that to cover a website. The prospect in our open country of landowners being in communication with each other on an hour by hour, minute by minute basis with websites, cameras or whatever it may be, fills me with horror.
Lord Rotherwick: I point out to the noble Lord that that already happens through the crimewatch scheme. When we have a suspect van in our area or other such events occur, the police notify us by means of a fax machine. I do not see any difference in their quoting the colour of a car or describing the type of person by the colour of his hair than actually stating the name of the person on a slightly updated piece of IT technology.
I turn to the other issue addressed by the amendments; namely, the question of the period for which someone breaching a restriction should be prohibited from returning. I understand the view expressed by the noble Baroness, Lady Miller, but I envisage real difficulties with enforcement. Are records to be kept of when the breaches occurred? Is any breach, no matter how trivial or unintentional, to count? In most cases, we believe that it would be sufficient disruption to a day's walking to lose the right of access for the rest of the day, as provided by the Bill. If there is a serious breach--I must emphasise this again--tougher sanctions will almost certainly be available; indeed, they are already in existence.
I believe that we are trying to use a sledge-hammer to crack a nut in this case. We have an enforceable sanction for something that is not a serious offence. We have perfectly good existing laws for aggravated trespass and good existing criminal laws for serious offences, which can be dealt with without amendment to this Bill. If we have repeated offences, as referred to by some noble Lords, how would one landowner know that a walker had breached restrictions on another landowner's land? Landowners can seek injunctions where walkers repeatedly breach restrictions. That is the situation now and, indeed, landowners have always been able to do so. It is no less realistic than prosecuting for criminal offences. In fact, it is likely to be easier to approve and less costly.
I return to the issue of the balance between penalties applied to walkers and landowners. The Bill provides for those sanctions to be applied to landowners, unless they erect misleading notices or ignore repeated notices to remove an obstruction. There are no sanctions for failing to facilitate access. There can be reference to by-laws if needed. The suggestions made in this group of amendments either for extending the geographical area of exclusion or the time for exclusion do not appeal to the Government.
Earl Peel: I have a terribly important fundamental point for the Minister. If a closure order is in place on a particular piece of land and a walker persistently ignores it, I presume that that order will be covered by a by-law. If that is the case, the walker will be committing a criminal offence. It is a question of whether or not a closure order will be covered by a by-law. Quite frankly, if we do not have such a sanction, the Minister has reiterated all my fears about the sanctions under the Bill being meaningless.
Lord McIntosh of Haringey: If the noble Earl is referring to what I said about sanctions against landowners, I believe that to be outwith the scope of these amendments. It may be better to deal with that issue at another point. However, it is possible that I
Earl Peel: No. I was talking about a persistent breach. If, after consultation with the landowner, the access authority has imposed a closure order on a certain piece of land for a very good reason and a walker persistently ignores it, I presume that such an order would be covered by a by-law, which would make that breach a criminal offence. If that is not so, we have no sanctions at all.
Lord McIntosh of Haringey: It does not have to be covered by a by-law. Such a persistent offence could be aggravated trespass or could be covered by the criminal sanctions provided under the Bill. It does not require a special by-law in order to achieve that aim.
Lord Greaves: I have two questions. First, the Minister said that under the proposals people would be required to leave the land in question and not return for a certain period. In practice, if there is night-time access and people are asked to leave the land in question at a quarter to midnight, under the Bill as presently drafted they would be entitled to return at one minute past midnight. There seems to be a lack of logic here. Is the Minister prepared to consider whether 24 hours should mean 24 hours, rather than the remainder of the day in question?
Secondly, if someone is required to leave the land in question, does that involve leaving that land which is owned by a particular person, or does it involve retiring to the nearest right of way, even if that right of way crosses the land in question which may be only five metres away?
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