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Lord Goldsmith: My Lords, I, too, seek to respond to the challenge so ably put by the noble Lord, Lord Kingsland, as to why, by reference to the European Convention on Human Rights and to precedent, compensation is required. I can deal briefly with the European Convention on Human Rights because the noble Lord, Lord Lester--and no one knows better in this area--has uncharacteristically said that the Government are right to say that what they are doing does not contravene the convention.
I hope that the noble Lord, Lord Kingsland, will forgive me for saying that he conflated two distinct rules in Article 1 of the First Protocol. The first is concerned with the expropriation of property; the taking of property. It is contained in the sentence which reads:
Lord Kingsland: My Lords, the noble Lord is most generous in allowing me to intervene in what promises to be an extremely interesting and effective speech. I hope that I did not conflate the two. My argument was that a right of access is the same as a right of way; it falls into the category of a legal encumbrance and is therefore equivalent to expropriation.
That was my argument on the first arm and I went on to deal with the second arm about control. The noble Lord will perhaps disagree with my assessment of the effect of right of way on property but I hope he will accept that I did not conflate the two parts of the article.
Lord Goldsmith: My Lords, I heard the noble Lord--and Hansard will show whether my recollection is correct--describe what is taking place as "expropriation". As a matter of law or as a matter of common sense, I cannot see how what is being done can be described as "expropriation". Landowners continue to be able to deal with their land, to sell, to let, to farm and to turn it to advantage. Indeed, they can do things with their land which would result in the right of access disappearing. I cannot see how by any stretch of the use of language, what is happening there can be described as "expropriation". As the noble Lord said, it is in relation to expropriation cases, such as the Lithgow case which arose out of the nationalisation of the shipbuilding industry, that the question of compensation arises.
The other rule--and I accept that the noble Lord recognises the difference--is concerned with the control of the use of property. The issue there is not that of compensation but the question of fair balance. There should be a fair balance between the interests of landowner and of the community. When one looks at that, the following features of the Bill seem to me to be fundamental and compelling. First, the rights which the Bill will provide will be of great benefit to a large number of people, opening access for millions of people to the health, wellbeing and beauty of the countryside. So the public interest in the access is clear. I have sat through debates in this House, although I have not ventured previously to express opinions, and I understand that that is not in dispute.
Secondly, it is a modest right. It is principally a right for open-air recreation for walking, applying only in the wildest and most undeveloped parts of the countryside--mountains, moors and heaths--with significant restrictions particularly in Schedule 2.
Thirdly, it will constitute minimal interference with the rights of owners. It will not prevent owners from developing or using their land. Users have no general right to annoy or obstruct any lawful activity by people lawfully on the land. There is no obligation even to do anything to facilitate access.
There is a considerable distinction there regarding rights of way, on which I should like to say a word in a moment. Unless there is an agreement under Chapter 3 in respect of which compensation or payments may be made, there is no requirement on owners to facilitate access. Owners can restrict or exclude access for 28 days without prior approval or for greater lengths of time on application. The responsibility of the owner to people who are injured on the land is severely and seriously limited by Clause 13. All those factors, including the tough restriction on dogs, seem to me to justify the statement that the interference is minimal; certainly no more than is justified by giving the great public benefit to which I have referred.
I think that when one looks at the fair balance of the legitimate aim and asks whether it is proportional, in Euro jargon, to the end being achieved, the answer is clear and totally to be distinguished from the French hunting case to which the noble Lord, Lord Brittan, has referred--which says a lot more about the attitude of the French to hunting than it does about the law--where what was being done was that the hunting rights, which are themselves a property right, were being transferred against the wishes of people who were ethically and fundamentally opposed to hunting. For them to be required to see people hunting on their land when they were ethically opposed to it is very different from the situation here. No one suggests for a moment that anyone is ethically opposed to a peaceful right to ramble or to roam. So far from it being crystal clear that the European convention requires compensation, it is crystal clear that this does not contravene the convention at all. I am very comforted by the view of the noble Lord, Lord Lester, on that.
The second point the noble Lord referred to was precedent: not the precedent referred to by the noble Lord the Minister in connection with the Law of Property Act or the Dartmoor Commons Act, which do not provide compensation although rights of access are provided. It seems to me that the position under the 1949 Act, quite apart from its antiquity, is quite different because there certain landowners were being required to provide access, whereas the vast majority were not. I believe the Government have estimated that 50,000 hectares of access were secured under that Act, compared with over one million hectares under this Bill. It seems to me entirely reasonable that landowner A, who is subject to an access order, compared with landowner B, who is not, although his land is the same, should say "I am suffering a
There is another problem with the amendment, which seeks to apply the National Parks Act 1949. It is very easy to see how neat the proposed amendment is: to turn against the Government a piece of Labour legislation which provided for compensation, but if one examines the amendment, and particularly at this stage on Third Reading, the amendment does not work. Why not?--first, because under the 1949 Act compensation is payable by the local planning authority. That made sense because they were the ones who decided whether or not access should be ordered. Does the noble Lord intend that under this amendment compensation is to be payable by local planning authorities who have nothing to do with the grant of the rights by Parliament?
Secondly, compensation is not payable until five years after an access order is made under that Act. How does that apply here? There will be no access orders. Does that mean compensation will not be payable at all if this amendment goes through, or that the Act is to be read in some different way? There are exceptions and provisions in the 1949 Act. The definition of excepted land is different. How can one lift those provisions, as is proposed, and apply them to this present Bill?
If one finally takes the example of rights of way, to me this seems a different position: not only is a right of way a property right in itself but it carries within it positive obligations. The owner of land over which there are rights of way is obliged to secure that right of way, to clear crops away to make sure that that access is available. That is not the position under this Bill.
If I may turn from those fine legal points to a last comment, it is this. If one looks at the benefit in a modern society, we all suffer detriments and disadvantages in relation to our property and livelihoods. We find that planning permission is not granted when we would like it or that it is granted next door when we would rather it were not. In a modern society we all have to accept some of those burdens. I am glad that we have not reached the stage of the United States, where somebody has to pay for everything that you had rather did not happen. The fair balance here is to accept the benefit. The Bill has secured many changes which limit and remove some of the disadvantages that people had. I would respectfully suggest that to pass this amendment is not only unnecessary, but it may send a message which is not intended. However, the message that this House continues to be concerned about a particular class of right and property rather than the rights of the population as a whole I am sure is not intended: I simply sound concern that such a message might be given. I apologise to your Lordships for taking up so much time, but I hope the noble Lord will feel able to withdraw his amendment.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord, Lord Marlesford, for giving way. Would he allow me to correct his interpretation of what I said? I did not say that the mere showing of economic loss gives rise to a right to compensation under the convention. I said that very rarely in a control-of-use case such as a planning blight that lasts for 10 years with no compensation, to take the Swedish example, the European Court will say that there should have been compensation as part of proportionality. I was seeking to explain that in almost all other cases of control of use, unless the degree of economic loss is so severe and the blight lasts for so long that it is quite exceptional as in the Swedish case of Sporrong and Lonnroth, there is no right to compensation . in respect of control of use. There is a right to compensation for the outright taking of property, and if I seemed to confuse by referring to economic loss, it was because part of it was the severity of the economic loss. However, if it is under control-of-use, in most cases one has had it.
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