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10.30 pm

Perhaps the Minister will remember that when he made his statement on the publication of his consultation document and I asked him about compensation arrangements, he was so unsighted or inadequately prepared, or both, that the Speaker, on hearing his answer, allowed me to ask my question again. His second answer was no better than his first.

Why do I say that new clause 16 is in line with legislation sponsored by both Labour and Conservative Governments? Part V of the National Parks and Access to the Countryside Act 1949, which was passed under a Labour Government, and sections 25 to 28 of the Highways Act 1980, which was passed under a Conservative Government, contain provisions permitting access over land, but also provide for compensation to be payable to the extent that the land's value has depreciated by reason of public access.

The approach taken in those statutes accords with established constitutional practice and European convention on human rights guidelines, and provides clear precedents on how a fair balance is to be struck on such matters in the United Kingdom. Those considerations call into question the legal propriety of the approach taken in the Bill.

Although I have referred to those statutes, the common law also recognises the importance of compensation for individuals called upon to make sacrifices of their property in the public interest. I refer to the well-known case of Burmah Oil, which was decided, in 1965, by the Judicial Committee of the other place. That case embodies

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the principle in a presumption of statutory interpretation that Parliament is generally to be taken to have intended compensation to be payable.

That that was in fact the intention of Parliament in connection, for example, with the 1949 Act is confirmed by the comments of the late John Silkin, the Act's sponsoring Minister. On Second Reading, he said:

I think it is right that if an owner of land suffers loss, and can prove that he has suffered loss, as a result of allowing the public to roam over his land, he should be entitled to compensation.--[Official Report, 31 March 1949; Vol. 463, c. 1480.]

Those comments seem to reflect established constitutional practice.

What about landowners' rights under the European convention on human rights? First, the Government have publicly stated--in the White Paper "Rights Brought Home", and in the provisions of the Human Rights Act itself--their commitment to comply with the ECHR. Secondly, property rights are protected under the European convention. Thirdly, the right to respect for one's home and privacy is also respected in the European convention.

Fourthly, to be compatible with the ECHR, any open countryside enactment would have to strike a fair balance--which means, inter alia, that access to the open countryside must not place a disproportionate burden on landowners, and that it must not cause any unjustified discrimination.

Fifthly, the Bill--albeit through silence--makes it clear that no compensation will be payable to landowners whose land becomes subject to the new rights of access. It appears that that refusal of compensation rests on an unexplored factual premise that no financial loss would be caused. We have yet to hear the reasons for that, although it is contradicted by a detailed and authoritative study presented by Dr. Noel Russell of Manchester university.

In those circumstances, we suggest that, without new clause 16, the Bill would be open to serious challenge under the European convention. As no compensation whatsoever is proposed for the losses that will occur, it is hard to see how the Government can begin to justify the fair balance requirement for interference with property rights.

Mr. Lembit Öpik (Montgomeryshire): Given that the hon. and learned Gentleman is saying that it is a matter of natural justice that there should be compensation if the land value goes down, does he agree that, in essence, either the land value will go down, in which case there will be a strong case for compensation, or it will not, in which case the Government should not be afraid of accepting that responsibility?

Mr. Garnier: I entirely agree with the hon. Gentleman and I shall develop that point later in my speech.

Statutes currently permitting access over land provide for compensation to be payable for the amount by which the value of the land has been depreciated by reason of the public access. The approach taken in these statutes accords with established constitutional practice and ECHR requirements. They also provide clear parliamentary precedents on how a fair balance is to be struck.

The Government already have a reputation for saying one thing and doing another. They should not enhance that aspect of their reputation by leaving this Bill in its

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current state. Ministers are now required to consider at an early stage whether any Bill is convention compatible and to ensure that they, their Departments and their officials are fully seized of the gravity of the obligations set out in the convention.

I have to assume that the Minister, especially after the question and answer session that he and I had when he made his statement 18 months or so ago, has already given careful consideration to possible objections to the Bill that I shall draw to his attention.

First, as he will accept, property rights are protected under the ECHR and should be protected by the Bill. ECHR rights are to be secured and enjoyed by everyone. That is clear from the text of article 1 of the convention. That it includes companies, partnerships and other legal as well as natural persons is made clear in the opening words of article 1 of protocol 1, which protects property rights. All of us as citizens have the right to protection of our property rights under the convention.

Protocol 1 to article 1 provides:

Every natural or legal person is entitled to the peaceful enjoyment of all his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.


The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The case law of the European Court of Human Rights establishes that article 1 of that protocol contains three rules. I quote from the court's judgment in the case of Sporrong v. Lonroth in 1983:

The first rule, which is of general nature, announces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph.

Secondly, the right to respect for one's home and privacy is also protected under the ECHR. Any proposal for giving rights of access to the countryside has to be considered under article 8 of the convention which provides:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.


(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The word "home", the European court has observed in the case of Neimietz v. Germany, deserves wide interpretation and is not confined to one's home. In the same case, the court did not consider it possible or necessary to attempt an exhaustive definition of the notion of private life; again it was not prepared to define that concept narrowly.

A right of access to land where the landowner has his home would clearly interfere with the rights to respect for the home and to privacy, an integral aspect of which is the entitlement to exclude entirely the outside world. The Government's consultation paper, published about

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18 months ago, appeared to recognise the need to give protection to the relevant convention rights. Paragraph 3.16 stated:

In general, the Government considers that people should have a right of access only to land which is not developed. This will protect people's privacy in their homes, gardens and places where they go to work, other than on agricultural and forestry land.

I welcome the Government's recognition of the need to safeguard rights protected by article 8 of the convention.

Thirdly, to be compatible with the European convention, any access provision must strike a fair balance. That means that access to the open countryside must not place a disproportionate burden on landowners and must not cause discrimination.

Depending on the precise circumstances of individual landowners, enactment of clause 2 may require scrutiny under article 8 or under any of the three protocol 1/article 1 rules to which I have referred. Whichever applies, the European Court's case law establishes that measures taken must strike a fair balance, must not place a disproportionate burden on landowners, and must not cause discrimination.

Enactment of the proposals in the Bill could lead to the different treatment of lowland and upland sheep farmers, for example, or of a commercial shoot operated on moorland subject to rights of access and one on land without rights of access. Those distinctions will have to be justified in the light of article 14, which the Minister knows only too well prohibits discrimination and reinforces the case for compensation to be paid to landowners affected by a right to roam.

The level of compensation provided is central to an assessment of whether the fair balance has been struck. The recent case of Lithgow v. the United Kingdom offers guidance in that regard. In that case, the court judge stated:

Compensation terms are material to the assessment of whether a fair balance has been struck between the various interests at stake and, notably, whether a disproportionate burden has been imposed on the person deprived of his possessions.

Lithgow's case also indicates that "only in exceptional circumstances" can deprivation of possessions without compensation be justified.

The Government were explicit in proposal 29 in their consultation paper that

owners and occupiers should not be eligible for general compensation for access to their land.

That position is implicitly maintained in the Bill. In the light of the European Court of Human Rights case law, that is a striking omission. Clause 2 will reduce the existing rights of landowners significantly and can be characterised only as a deprivation of possession. Only in exceptional circumstances can deprivation take place justifiably without compensation.

In the consultation paper, the Government tried to justify the result by claiming in paragraph 3.48 that the proposals would

not have major financial implications

for most of those affected, because

experience suggests that there will not usually be any significant damage to walls, fences and the land itself.

I have referred already to Dr. Russell's report, which casts doubt on that assertion. It suggests that there are likely to be significant cost implications in proposals similar to

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those in the Bill, and that they would have an effect on land values. Since the consultation paper was published, the Government have not advanced any counter- arguments in response to the Russell report.

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