§ 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 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 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 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 fanner 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 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.1834
§ 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.)
§ Lord Livsey of Talgarth
My Lords, I shall speak only briefly, because the Bill affects England and I am a Welsh Peer. I do not wish to speak about areas where legislation is frankly rather different, as we have been told by the noble Earl. The regulations have been applied somewhat differently by the Countryside Council for Wales in relation to certain measures of access.
I have been a farm manager where there was a grouse moor. I have also been a farm manager in situations where heather burning took place regularly at certain times of year. Trying to speak objectively, no doubt there is a need for notice when such activities take place. In the management of grouse moors, for example, in the situation in which I was involved—it was in Scotland—we deliberately had a very much lower stocking rate to enable the heather to grow. That was to ensure sufficient cover for the young birds. We also produced some fantastic lambs as a result of that low stocking rate.
Flexibility is clearly required, but I support the CROW Act and its access provisions, which are in the process of creating much better access for the public. I understand the noble Earl's plea for management. I have some doubt whether it is necessary to pray against all the regulations. I should have thought that common sense and compromise would prevail where certain situations demanded it.
I know that the younger generation of the farming community is into computers in quite a big way. However, I recently attended a meeting of commoners where 86 commoners turned up. A national park officer said that the information had been put on their website. I stopped the officer from saying any more and asked the audience how many of them had computers and could access the Internet. The answer was that only six out of 80 could do that, so we must be very careful about putting information on the Internet. We live in a twin technology society—the haves and the have nots.
Mention was made of statutory entries on to land, which is foreign to me. For many years in Scotland and in Wales, open hills have had access. I cannot comment on the situation in England, except to say that often there is a point where people gain access on to land and notices are placed there. I make a plea for flexibility in accommodating management, which is important, and the needs of commoners in particular must be taken into account.
There is a balance to be achieved between sporting activities and sporting rights and access to such land. Surely, there is room for a sensible compromise in these matters.
§ Baroness Byford
My Lords, I support my noble friend Lord Peel and I thank him for his clear introduction of his reasons for raising the issue today. 1835 I, too, carefully went through the statutory instrument, as I am sure did the Minister. We spent hours on the CROW Bill as it went through this House. All of us wanted to ensure that it was workable and practical and that moneys were allocated for the successful implementation of the Act. On reading the statutory instrument, I have several questions for the Minister.
I shall not go into the full details—my noble friend has done so and has spelt them out clearly—but I want to highlight one or two issues. First, my noble friend rightly said that a balance must be struck between the management of the land and the safety of the public. When we took the CROW Bill through the House, we fought hard at all stages to ensure that the public would be safe. My noble friend spoke of the Animals Act and the fact that if a closure is in place the farmer is not liable. The closure relates not only to dangerous animals, and my noble friend mentioned calves at heel with cattle.
Perhaps I may share an experience with the House. Earlier this year, my niece, Julia, was walking through a field of cattle—there were no young at heel—and she had a dog. For whatever reason, the cattle were startled and I am afraid she was trampled underfoot. She managed to get up again, but her hand was broken and her shoulder badly damaged. They were not dangerous animals, but something had obviously upset them. Unfortunately, she made the mistake of hanging on to the dog rather than letting him go, in which case the cattle would have chased the dog. As it was, she was badly trampled. Fortunately she is now all right. My noble friend raises a real problem.
I want to return to some of the discussions we had in the House. My noble friend raised the issue of cost, and I understood from days of debate that the relevant authorities would have money provided for signaging in order to inform the public when land was open and closed. I have looked through the statutory instrument and I am still not clear about the matter.
When we debated the matter in October 2000, the noble Lord, Lord Whitty, clearly said that the duty of the access authority to provide visitor management facilities would be established, but I have not seen that happen. We are talking about closures, not day-to-day management. We could not persuade the Government that it would be helpful to have a central telephone point so that people could ring in order to find out where access land started and finished. But we are not talking about that today; we are talking about closures and how people will know where they are.
The Minister accepted the arguments on that and said:We all agree there should be no obligation on landowners to provide the facilities he is talking about. The Bill already allows for such facilities to be provided by the access authority at taxpayers' expense. For example, Clause 19 provides for notices to be erected informing the public of the boundaries of access land. Clause 33 refers to access authorities entering into agreements for the provision of means of access to land. All that is clearly the responsibility of access authorities. They have to make a judgment on their priorities as to where they provide such facilities".— [Official Report, 3/10/2000; col. 1505.]1836 Has that intention been bypassed or lost in the passing of time?
On 9th October, my noble friend Lord Marlesford referred to costs, saying in relation to Amendment No. 302 on compensation:My impression from last week's proceedings is that the Government have largely accepted this. We have already had undertakings that they will pay for signing, for the additional fencing that may be necessary, for the collection of litter and for other items of additional cost".—[Official Report, 9/10/2000; col. 22.]Where has that intention gone to in the mean time? During the same debate, we dealt with damages and liability. The issue was referred to on many occasions, therefore.
In that same debate, the Minister said:However, even in its present form, the Bill contains a significant number of measures that will restrict any cost likely to fall upon the landlord and ensure that other authorities meet the major costs rather than the landowner. Indeed, as we have gone through provisions at some length, I indicated a number of areas that would increase yet further the protection of the landowner in this respect".—[Official Report, 9/10/2000; col. 27.]I need quote no further—I hope that I am making my point in questioning the validity of the additional costs that this statutory instrument places on landowners.
Furthermore, why had England decided to go down a route different from that taken by Wales? It seems illogical. It appears that exemptions are given to the owners or the tenants, and that people who have sporting or grazing rights do not have any say. I should be grateful if the Minister could clarify that.
In relation to Section 25 and fire and danger to the public, what will happen on defence land? If there has to be an exercise on defence land where access is normally available, how are the public notified? I understood that there were to be red flags at certain points around the area. That is fine if people are accessing the land on walks or at normal points, but the right to roam means that there are no such places. People can access from any point. Are there any lessons we can learn from what happens on MoD land and was that considered when the statutory instrument was raised?
Regulation 4 of the statutory instrument concerns exclusions and restrictions. Paragraph (1) of the regulation refers to:Notice given by an entitled person".Can the Minister tell me exactly who is meant by the "entitled person"? I also ask the Minister whether the Government will do more than simply place notices or information for the public on the web. The recent legislation that we have dealt with in this House has referred only to the web. I should be glad to receive clarification on that point.
I believe that I have covered most points and I shall not repeat what my noble friend said. If I remember correctly, in discussing signage or a central access point where people could obtain information, we talked about a telephone helpline. Can the Minister say what has come of that? It was discussed during the passage of the Bill but has it since been ignored?
1837 Finally, will the Minister confirm that access is likely to kick in at the end of 2004? That is slightly earlier than we had expected as I believe that the date was brought forward. If that is the case, there is a great need to get the statutory instrument right. I believe we all agree that it is vital that the statutory instrument should be workable for land managers and tenants and, more importantly, so that protection is afforded to the public, who should be able to enjoy the countryside safely and with full security.
§ Baroness Miller of Chilthorne Domer
My Lords, I want to raise one or two points but, first, I apologise to the noble Earl, Lord Peel, for missing the first 30 seconds of his speech. I was taken slightly unawares by the speed at which the previous business was taken.
I welcome the publication of the regulations as yet another progress step towards open access becoming a reality. The points that I want to raise cover an area that the noble Earl, Lord Peel, said we would be likely to have in common, and he is absolutely right.
One issue on which I am not clear and about which I should like to hear from the Minister is that of informing the public. We spent a long time on that subject in Committee and we stressed the importance of using websites. But I believe that we imagined that the use of websites would be in addition to use of the local press and leaflets and so on. However, in the regulations it seems that the website will rule and that use might be made of other means if, at its discretion, the access authority sees fit to do so. That will be all well and good where access authorities are conscientious, as I believe they will want to be, but I wish that the regulations had referred to all means.
Part I of the regulations is entitled "Preliminary" and refers to the use of electronic communications. It lays out some of the parameters of using only electronic communications. I ask the Minister whether that is now a tried and tested method or whether Regulation 3 is the first example of such communications being used.
I may be approaching this matter in a different way from the noble Earl, but I believe it is important that the regulations work well. The public will need to know what is open or closed. It will be hugely frustrating for them if they walk a long way to reach a spot only to find that the final part of the walk is closed. They might, for example, have walked to the crest of a hill or have trudged 10 or 12 miles to a spot and it will be very frustrating for them to find that the final part is closed. That would be unacceptable.
The second area that I want to highlight is that of closures for purposes of defence. I am sure the Secretary of State for Defence will be sensitive to that matter. However, the regulations make provision for areas of land to be closed in the long term for purposes of defence, and I believe that sometimes that can be done without any written explanation being given to the public.
On the face of it, I can understand that that may seem reasonable where issues of national security, and so on, arise. However, earlier in the year, I submitted 1838 a number of Written Questions to the Ministry of Defence on the subject of the increasing use of the Defence Act 1842 to close footpaths. I do not intend to list those now because I am aware that the House will not want to spend long on this matter. The Act requires that closed footpaths are replaced by similar footpaths in the same area. However, since 1997 that has not happened in one case. I do not consider the reply given by the Ministry of Defence—that it was not necessary to follow Section 17 of the Defence Act 1842—was adequate.
It would be unacceptable if the Ministry of Defence chose to close without explanation, and chose to leave closed, large areas of open access land. I can understand that at present it is a matter of trust and I hope that the Government will get it right. But it is an issue on which I certainly intend to keep an eye, particularly in view of the attitude over footpath closures. That said, I wish the Countryside and Rights of Way Act good speed, and I look forward to hearing the Minister's reply.
§ 6.30 p.m.
§ The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty)
My Lords, it is a great delight to return to this subject with many veterans of the Countryside and Rights of Way Act. It was one of the most interesting and extensive pieces of legislation that I have taken through this House, and many exchanges took place, some of which have been recalled today. Although I would not say that we reached consensus on everything, I believe that, by the end, we agreed that we wanted a balanced operation between the great enjoyment and benefit brought to the walking public as a result of the Act and the needs of land management and the rights of landowners to enjoy their land. I hope that that has been the spirit in which we have pursued the regulations. They were developed after a full period of public consultation and after consideration of all the views expressed during that consultation.
The regulations before us today deal only with restrictions and exclusions. Some of the issues raised about more permanent arrangements—particularly some of the questions from the noble Baroness, Lady Byford—are outside the remit of the regulations. The focus of our discussions today is how to deal with temporary closures. The details of much of the system on the ground will not appear in regulations; they will be in statutory guidance. They will be worked out locally between the access authority, landowners and ramblers' associations and the Countryside Agency at national level in consultation with all interested parties. Therefore, some other areas will be covered in regulations but the bulk of them may well come within understandings locally.
I shall focus on the subject of formal exclusions and restrictions. The Act was framed in such a way as to allow rather more flexibility than I believe has been acknowledged this evening. At the simplest level, Section 22 of the Act allows owners of land 28 days, which they can use at their own discretion, to exclude 1839 or restrict access. They do not have to seek the agreement of the relevant authority but the regulations specify that they need to give five days' notice to the relevant authority—that is, the Countryside Agency, the national park authority or Forestry Commission. I can understand why the noble Earl said that, in certain circumstances, that is too long a period. However, in order to allow yet more flexibility, the regulations reduce that notice period to two hours in the case of closures for up to four hours, as the noble Earl acknowledged, or up to five days for closures in relation to smaller areas.
In addition to that, under Section 24, which allows for longer closures of land—there is an interplay between the two situations—the application must be made for a direction to the relevant authority. However, that application can be made by anyone with an interest in the land, including, for example, shooting tenants. In that case, the regulations set out a maximum period of six weeks within which decisions must be made. That has been regarded as too lengthy, but I stress that during the initial set-up period such time may be necessary on an ongoing basis. The guidance will make it clear that the relevant authority should aim to make decisions on straightforward cases well within the statutory time limits.
To address the issue of flexibility and a speedy response, the Act introduced the system of outline directions, which was not mentioned by the noble Earl. Under the directions, those with an interest in the land—this is under Section 24 so it could be a shooting tenant—can approach the relevant authority for an exclusion or a restriction, but the exact time that a restriction will be put in place on a particular piece of land, or indeed on the whole of the land, can be notified, by telephone, at a later date. Once one has the outline restriction, there is great flexibility up to the point when the restriction is activated.
In that case the regulations set the framework for how such notifications will be made and set a maximum of five days, but they allow for a different notice period to be specified in the outline direction. Again, the relevant authority would aim to agree a shorter period in the majority of cases. A provision to allow outline directions was specifically included in the Act and in the regulations to introduce maximum flexibility for the system and to allow the legitimate needs of landowners and of others with an interest in the land to be respected.
Under Sections 22 and 24 there are references to an "entitled person". Under Section 22 an entitled person is either the landowner or a farm tenant, where there is a farm tenant for a farm business tenancy. Clearly, the landowner or the agricultural tenant—as mentioned by the noble Earl—would be able to seek the closure, although the actual triggering of it could be achieved by someone acting on behalf of the landowner or by someone designated by the landowner. It could be someone with shooting rights who specified the precise time in which the provisions of an outline restriction or exclusion could be notified.
1840 Incidentally, that is the Welsh position in relation to Section 22. The difference between the Welsh and the English regulations is not as wide as was suggested, certainly in this respect. However, there is the problem of avoiding a situation—particularly with Section 22 exemptions—where a number of different people could claim to have the authority to decide on a closure. Therefore, it is necessary to determine whether only a limited number of people are entitled to seek a short-term closure, although once they are entitled, they can trigger it.
The wider definition under Section 24 allows for people acting on behalf of individuals to be those with an interest in the land, other than the landowner or the farm business tenant. People with a sporting interest, together with anyone else with a legal interest, would be able to apply to the relevant authority under Section 24, either for the original outline permission or under that outline permission.
The noble Earl referred to informal management techniques as an alternative to closure. They are not quite as he implied. We expect that informal management techniques will often be the simplest way, but there is no requirement for them to be tried before applying for exclusions. There are many examples of other informal management techniques that do not involve total closure, but one does not have to experiment with and pilot them before one can acquire an exclusion order.
There was much concern about publicity and signage. I believe that there is some confusion between what the noble Baroness, Lady Byford, said about the commitments during the debate that relate to general responsibilities for signage and the signage during short-term closures. All the bodies involved in the rollout of the new right of access, and certainly all the access authorities, will undertake the necessary publicity to ensure that people understand the new right and the responsibility that accompanies it. In particular, the Countryside Agency is developing a communications plan that will incorporate regional commencement, guidance on the new right of access to land managers and to the public and their policy on signage, including the new open access symbol.
A request was made during the course of the Bill to limit access to specific access points. The legislation does not provide for that, nor is that implied in the regulations in relation to temporary closures. We have issued guidance to access authorities on the use of their powers under the Act and further guidance will be issued. It will be the responsibility of those who apply for closures—rather than the responsibility of the access authority—to ensure that there is information about and enforcement of the closures.
There may be other means of communicating the closure regime, particularly through the website, but that is the limit of the statutory responsibility for the access authority. Thereafter there may be informal arrangements, through local access forums and through other means, to ensure that temporary closures can be more clearly signed, but the ultimate responsibility for that will be with the landowner.
1841 We shall not rely on the website only; the guidance will provide for wider provision of information, but not on every individual short-term closure.
§ Baroness Byford
My Lords, perhaps the Minister could clarify one point. Will noble Lords be able to ask questions once he has finished his response or should we seek clarification before then? He says that the responsibility will be on the landowner to ensure that people know whether there is access or not. How are they supposed to do that if there is no particular access point? I apologise to the Minister but I am in a dilemma on the procedure. Perhaps I should look to the Clerk.
§ Lord Whitty
My Lords, the normal rules will apply. Questions will not be taken after I have sat down. If the noble Baroness wishes to interrupt, she may do so.
§ Baroness Byford
My Lords, therefore I ask the noble Lord to respond to my question, which I had thought I would ask later.
§ Lord Whitty
My Lords, I am not saying that the landowner will be required to put up signs all over the place, but there is no responsibility on the access authority to provide signage for temporary closure. Therefore, if the landowner feels that there is a need for further information, that is the responsibility of the landowner or other entitled person who has requested the closure and not the responsibility of the access authority.
Clearly, we wish the procedure to work not in a regulated way, but in an informal and partnership manner between the access authority, the local landowners, the Ramblers' Association and others through local access forums and through local arrangements. There may be ways established locally that will give better guidance and, in addition to the website, there may be an individual point in an area where people can consult. We were talking about such matters for a more permanent scheme but they could also apply to temporary closures. The agency intends to establish a central restrictions unit, so there will be different ways in which members of the public can obtain details of restrictions and exclusions. That is not provided for in the regulations, but it is part of the invention of the Countryside Agency, which—to answer another of the questions of the noble Baroness—may well include in its final form a telephone hotline.
It is true that in certain circumstances the access authority may well decide that it should issue notices. But that is not an obligation on the access authority for every closure. Clearly, the authorities have the power under the Act to issue notices. That is slightly different from just putting up notices, and there is a slightly different situation, for example, where for a conservancy reason the closure is being sought on behalf of the authority itself. That is not at the landowner's initiative but at the authority's. So there are different situations.
1842 The noble Baroness also referred to defence land. Under present arrangements the Ministry of Defence can of course make restrictions for defence purposes on what is otherwise accessible land. The Act and the regulations do not change that. Although a great deal of defence land is fenced—and that is clear as there are only a few access points and red flags—much defence land is normally open access—for example, Salisbury Plain—and the Ministry of Defence when carrying out exercises has to sign to the public that access is not available. That applied before the Act and will apply after it.
The question of footpaths is slightly different. It relates to rights of way rather than access, but clearly the Ministry of Defence has responsibilities there as well.
The final point relates to finances. We need to ensure that the access authorities and others involved have adequate finances so that they can manage the scheme as a whole—closures and so forth. We have made generous settlements to the national park authorities in the past two financial years. Those settlements take account of the need to prepare for the new right of access in national park areas. We are also considering the authorities' bids for funds in 2004-05, so that they do not lack the resources to meet these challenges.
On local authorities, the Countryside Agency has produced outline proposals for a grant scheme. The agency has been asked to spell out how its ideas would work in practice. We await its proposals, so that it can assist local authorities in carrying out their powers under the Act.
So funds are available to the national park authorities, the Countryside Agency itself and of course to the local authorities via the Countryside Agency to ensure that we have adequate provision for implementation.
§ Baroness Miller of Chilthorne Domer
My Lords, will the funds given to local authorities be in proportion to the amount of open access land they have; in proportion to the amount of people using that open access land; or just on the normal funding formula? An answer in writing would be fine.
§ Lord Whitty
My Lords, I may be able to give the answer to the noble Baroness in writing, but not now. Clearly, the Countryside Agency is considering how the grants should operate. They will be grants and not part of the general settlement, except in so far as general provision has been made. So they will not be based on some other formulae. I am at this point unable to specify the precise formula. The Countryside Agency is still working on the matter.
I hope that that has dealt with most of the points raised. I shall check Hansard to see whether I need to write to noble Lords about any other points.
§ Baroness Carnegy of Lour
My Lords, before the noble Lord sits down, I hope he does not mind my popping up because I did not involve myself with the 1843 Bill. I am not clear about what he said about what my noble friend Lord Peel said. What happens if part of a landowner's business is a rough shoot syndicate of, say, local tradesmen—the local butcher, baker and so on—who come together in a syndicate for which the local landowner arranges? The landowner asks the tenant farmer if he will apply for a closure of the land for this purpose. The tenant farmer, who perhaps is not particularly friendly with the local butcher, says that he will not. The shoot goes ahead. There has been no closure. Who is liable if there is an accident?
§ 6.45 p.m.
§ Lord Whitty
My Lords, I do not think that I should get into the last part of that question of relative liability. It is clear that the entitled person is either the landowner or, in certain circumstances, the agricultural tenant. If the landowner should say in either his outline restriction or more generally that for shooting purposes someone acts on his behalf, provided that is made clear in the outline arrangements, the shoot might in certain circumstances be the person to trigger the closure— although "trigger" is probably not the right word in this respect. But in most circumstances the agricultural tenant, if it is a farm business tenancy—so not any old agricultural tenant—would be the appropriate person. If he had not sought the closure it would not be a legal closure under these restrictions, as I understand it. However, I am getting close to the liability question, so I think that I had better shut up at this point, and, if necessary, write to the noble Baroness.
§ Earl Peel
My Lords, I am grateful to all noble Lords who have taken part in this little debate on the regulations. The noble Lord, Lord Livsey, quite rightly referred to the situation in Wales as being somewhat more pragmatic than that which the Minister and his officials have come up with in this country.
My noble friend Lady Byford was so right when she said: "We want the Act to work". She went on to say that resources must be made available. The Minister spoke about resources at the end of his winding-up speech. I am bound to say that—if I can use this term— the word on the street is that resources are somewhat scarce. I am far from convinced that the access 1844 authorities, or indeed the Countryside Agency, will actually have the necessary resources to be able to carry out their responsibilities effectively.
The noble Baroness, Lady Miller, talked about the importance of informing the public. She was absolutely right when she said—and I understood it to be so—that the website is a secondary mechanism. The prime objective is to inform people on the ground what is actually happening. I maintain that this is the only effective way to let the public know what is happening and to safeguard the interests of those who have to look after and manage the land. I am bound to say that the Minister's reply did not exactly fill me with confidence.
My noble friend Lady Carnegy raised a very interesting point. It was right at the nub of the whole difficulty of the interpretation of who can apply for a closure order under Section 22. I think that the technical answer to her question is that if it was tenanted land, the tenant was an owner under the Act and the tenant did not wish for the shooting syndicate to have any of the available 28 days, the syndicate would have to apply under Section 24. That of course is at the discretion of the local access authority, which could turn it down. So we have a very real problem here. My noble friend was absolutely right to raise the matter as she did. It was a very succinct way to demonstrate the real problems and difficulties that we have in the Act—and indeed through the regulations.
I hear what the Minister says about partnerships. "Partnership" is a great word, and it can work if there is genuine desire by all parties to make it work. But it comes down to the fundamental question of whether the resources will be made available—it is there that I fear the Government will let us down. I will read the Minister's remarks with great interest. Equally, I hope that he will read with great interest what I and other noble Lords have said, in the hope that he might consider that some of the issues that we have raised point towards future difficulties.
I repeat the most important point of all: if the legislation is to work, we must avoid conflict. That is the key. Unless the regulations are considered much more seriously, conflict will occur and the legislation will be deemed a failure. I hope that that does not happen. In the mean time, I beg leave to withdraw the Motion.
§ Motion, by leave, withdrawn.
§ House adjourned at nine minutes before seven o'clock.