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Mr. Hilary Benn (Leeds, Central): I want to comment briefly on amendment No. 104. First, I shall deal with the point about potential criminality. The hon. Member for Ashford (Mr. Green) has a point in a sense, but the danger is no greater than the potential for criminality when someone walks along the pavement outside somebody's house. There is a risk, but we must ask whether it is sufficient to outweigh the rights that the Bill seeks to enshrine in law. I believe that it is not.
I say to the hon. Member for Somerton and Frome (Mr. Heath) that the Bill would not prevent someone from challenging another person. If a farmer comes across someone in the middle of the night who appears to be up to no good, he can challenge that person although he can then claim that he is there to look at the stars or the birds. The Bill does not remove the right of someone who is worried to ask, "What on earth are you up to?"
I want to speak briefly against amendment No. 104. First, it has no logic. Existing rights of way, such as footpaths, are not subject to a dawn-to-dusk restriction. I do not, therefore, understand why such a restriction should apply to the new right. Secondly, as has been said, the amendment could be dangerous in certain circumstances. People might think, "We must hurry to get off the piece of land that we are on before we engage in unlawful activity", when it would clearly not be safe to do so.
Finally, the amendment seems to misunderstand the nature of the right that this part of the Bill provides, for which people have campaigned long and hard for many years. The opportunity simply to listen to the stillness, to hear the night, and--as my hon. Friend the Member for Pendle (Mr. Prentice) said--to gaze at the stars is priceless. I do not see why the amendment should deny those who want to go out at night the right to enjoy those pleasures.
5.45 pm
Mr. Lepper: I want to say something about criminality. When the Government consulted on access, the organisations that currently manage large sections of
open country said that they did not believe that new byelaws or, indeed, new criminal sanctions would be necessary if access were extended. The Association of National Parks Authorities, the National Trust and the Peak District National Park Authority all said exactly that in their responses. Indeed, when more crime than one would wish takes place, it tends to take place on agricultural land near car parks and buildings--land that would not be included in the access provisions.When malicious damage is perpetrated, not just byelaws, but other parts of the criminal law already exist to deal with it. We have the Criminal Justice Acts and the Crime and Disorder Act 1998--and, indeed, the Bill supplements protection already conferred by the Wildlife and Countryside Act 1981. Part III contains new sanctions applying to deliberate damage to wildlife and its habitats. Amendment No. 103 is not necessary, and is not thought to be necessary by those responsible for managing the kind of land that the Bill specifies.
Finally, there is a question of access at night. I will not read out all the poem sent to me by my constituent Mr. David Bangs, but I will quote from it. He writes:
- The stars still shine in country skies. The light that has travelled for millions of years reaches our eyes where house lights, street lights, entertainment lights, son et lumiere lights, security lights, car lights, industrial lights drown it . . . Country stars, the scudding moon, and silk black night belong to us all!
I want to make just one point to the Minister. When we had a courteous and, I think, well-informed discussion in Committee about dogs, I made an observation that is reflected in the amendment. I realise that the right hon. Gentleman and his hon. Friends have had to consider many other matters, but I want to reinforce one point.
During a breeding season for ground-nesting birds, especially game birds, like this year's--which has been astonishing wet on high ground--the extra month is critical to the well-being of birds and the successful rearing of chicks by hens. During that period, it is essential for the birds not to be disturbed. I ask the right hon. Gentleman to consider with even more force what I consider to be the responsible and unanswerable case put by my hon. Friends and me in Committee.
Mr. Meacher: Before I deal with the non-Government amendments, I want to discuss amendments nos. 200 to 205, which seek to give effect to my undertaking in Committee to provide that the commission of any offence on access land should constitute a breach of a restriction under schedule 2. That would render the offender a trespasser and, therefore, liable to be removed from the land.
It is right that landowners should be able to ask those in breach of the criminal law to leave their land, whether or not it is access land. If a landowner suspects that a criminal offence may have been committed, he may well wish to report the matter to the police. I hope that the amendments will reassure landowners that the new right of access in no way obliges them to tolerate criminal activity on their land. We have always emphasised that those who exercise the new right should be responsible, and the amendments are intended to promote that message.
Government amendments Nos. 201 and 206 were tabled in direct response to amendments tabled in Committee, under which the Opposition wanted to add metal detecting to the list of restricted activities in schedule 2. Those found using or carrying metal detectors without permission will become trespassers and might be asked to leave the land. I hope that hon. Members will think those amendments sensible and welcome them.
Government amendment No. 208 will ensure that directions made under paragraph 6 of schedule 2 that end the application of any schedule 1 restriction to an area may be made in anticipation of its becoming access land. Government amendment No. 209 will allow the relevant authority to vary a direction under that paragraph with the owner's consent. I agreed to consider similar amendments that the Opposition tabled in Committee, and Government amendment No. 209 is consistent with that undertaking and with the power in clause 25(1) to vary a direction given under chapter II. Therefore, I hope that hon. Members will appreciate the sense of those amendments, which, again, show the Government's sincerity in saying that we would sympathetically and carefully consider proposals made in Committee.
I shall now deal with non-Government amendments. Under amendment No. 7, anyone who breached restrictions on access under schedule 2 would be excluded from all access land for 72 hours. The Bill specifies that those in breach of restrictions should be excluded from the relevant land, or from other access land in the same ownership, for the remainder of that day. It is not realistic to assume that landowners will know whether a walker has breached restrictions in the previous 72 hours on someone else's land; nor would it always be appropriate to impose such a sanction on a walker whose breach of restriction might be extremely minor. Therefore, there is no reason why the ban on returning to access land should extend beyond the rest of the day or to access land in different ownership. Of course, criminal sanctions will continue to be available where offences are committed.
As with the other proposals to criminalise trespass on access land, we do not agree that those who, possibly inadvertently, breach restrictions under clause 24 and who may not cause any harm or damage as a result, should be subject to a potentially substantial fine, as proposed under amendment No. 27. The hon. Member for Beaconsfield (Mr. Grieve) referred to the fact that trespass itself has never been a criminal offence in this country, except in very limited circumstances. Parliament has declined to turn trespass into an offence unless some harm or potential for harm can be shown.
Criminalising trespass on land that is closed for conservation reasons would create a wholly unjustifiable inconsistency with important conservation areas that are not access land. To make that a criminal offence would, in our view, be disproportionate. I am not convinced that stepping off a path to take a photo or to admire a view should be made a criminal offence. Where identifiable harm or damage occurs, it will be subject to a criminal penalty. If a certain activity causes a problem, the local authority can make it subject to a byelaw.
Under amendment No. 103, it is proposed that those in breach of a restriction--trespassers--should be subject to a fine of £200. The Government remain pretty unconvinced that those who breach the restrictions on access land should be subject to a penalty that is greater
than if they had trespassed in someone's front garden. Those amendments would make walkers who, perhaps inadvertently, break one of the more minor restrictions, such as bivouacking on a remote fell or swimming in a stream, into criminals. That would be ludicrous, as the hon. Member for Beaconsfield rightly said, and I can see that he can barely contain himself about it.We do not consider that it is necessary to impose a broad, wide-ranging penalty over all access land to penalise what may often be minor breaches of the restrictions. If an activity is not a criminal offence already, there is no reason why it should be simply because it occurs on access land.
I turn now to amendment No. 104 on access at night, which has been the main subject of discussion. As on so many matters, we had a useful and extensive debate in Committee about the merits of allowing the new right of access to apply at night. As the Under-Secretary of State, my hon. Friend the Member for Sunderland, South (Mr. Mullin), said, the argument is finely balanced, and I accept that. We have considered carefully the case for restricting access at night. In doing so, we have kept in mind the need to address the genuine concerns of those who own and manage land affected. We have also borne in mind the principle that restrictions should be applied only when strictly necessary.
Although most people who will benefit from the new right will wish to exercise access during the day, we should not automatically ban access at night. There are various reasons why some people may wish to have access to open countryside at night, and my hon. Friends referred to them extensively. People may simply want enjoy a sunset or sunrise, or to get up to enjoy the nocturnal or early-morning wildlife. More serious walkers may need to be on land very early in the morning, or after dark, if they are undertaking a long hike and wish to reach relatively remote areas. People may also need to shelter overnight, especially if they are caught out by the weather. In addition, some people will wish to challenge their navigational skills through night hikes. That is not unknown and, indeed, night navigation exercises are an important part of mountain leadership training.
I recognise that there are genuinely held concerns, which have been well expressed in the debate, about the impact of night-time access on security and people's safety, but they should not be exaggerated. We are talking about uncultivated land, usually well away from where people live, and we have specifically excluded buildings and their curtilage. The small minority of people who are intent on crime are unlikely to be deterred by the fact they do not have a right to be on the land at night. I understand the point made by the hon. Member for Somerton and Frome (Mr. Heath), but I shall perhaps deal with it in a moment.
Poaching is already a criminal offence, and we have made it clear in the extensive list of restrictions in schedule 2 that those engaged in such activities, or who carry equipment used for such purposes, will lose their right of access automatically. Moreover, as the National Trust recognises, legitimate and responsible access at night may well help to deter poachers, as there could be more eyes and ears about. That is an important point.
Perhaps most compelling of the arguments against a blanket ban on night-time access is the experience of those who already allow it. The Forestry Commission and the National Trust are prominent examples. They own and manage extensive landholdings in the countryside and have a policy of promoting public access, but night-time access has given rise to few problems and has not required blanket restrictions. Where problems arise, they are more likely to occur at so-called honeypot sites and car parks than in more remote areas.
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