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Mr. Hogg: My hon. and learned Friend spoke of the diminution in land values that could flow from the right of access. Does he intend to deal with the costs incurred by landowners who are obliged to maintain bridges, buy insurance and ensure that the land is clear of obstacles, and so on? Those out-of-pocket expenses may be different in kind from a diminution in land value. Does my hon. and learned Friend think that compensation should be payable in respect of such expenditure, and is the matter covered by the new clause?
10.45 pm
Mr. Garnier: My right hon. and learned Friend is right to draw the attention of the House to that matter. Indeed, he drew attention to it during an earlier debate this evening, in a very lucid exposition. The problem that I recognise in a Bill from which new clause 16 is absent is that the burden of insurance falls disproportionately upon the landowner when he is performing a task for the public good. It seems to me--and I dare say that my right hon. and learned Friend agrees--that it is unfair, unjust and contrary to the human rights legislation for the Government to require individual landowners to take upon themselves a disproportionate burden of the cost of furnishing safety and access provision when it is for the general public that such measures are being provided.
Mr. Grieve: We discussed this issue earlier with regard to trespassers, and it is central. The Government have made it clear that the duty of the landowner towards the people coming on to the land will remain the same. Those people will have the same rights under the Occupiers' Liability Act 1984 whether they are on access land or on land on which they have no right to be. From the landowner's point of view, the difference is that he will have to make a completely different assessment about the risk of such people coming into contact with material that may injure them. They will be coming on to his land in far larger numbers, and the risk will be augmented as a result.
Mr. Garnier: My hon. Friend makes a point of equal value to that made by my right hon. and learned Friend. It seems to us a matter of fairness and justice that the burden of insurance should be evenly distributed across the taxpaying population, and not visited solely on individual landowners, be they human beings or corporations. I am grateful to my hon. Friend and my right hon. and learned Friend for their assistance in this matter.
Mr. Simon Thomas: There are landowners in my constituency, in the Ystwyth valley, who have ancient lead and silver mineworkings on their land. They will now have to have regard to the fact that large numbers of people will be traversing their land and will have to expend considerable sums of money to make those mineworkings safe for public access. Should they not have a route to compensation under the new clause?
Mr. Garnier: As I understand it--and I am sure that either the hon. Gentleman or the right hon. Member for
Caernarfon (Mr. Wigley) will correct me if I am wrong--owners of mines are already required to keep their mineworkings safe. None the less, the hon. Gentleman's general point fits in well with the new clause that we propose.May I take this opportunity to join my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) in commiserating with the House--up to a point--in that we shall no longer have the advantage of the presence of the hon. Gentleman's party leader, the right hon. Member for Caernarfon, after the next election? The contest for his seat will be fiercely fought, but I dare say that the right hon. Gentleman will have plenty to do in Wales after the end of his career in this place.
Mr. Bennett: Does the hon. and learned Gentleman not accept that there is an existing liability on landowners under health and safety regulations, under which they must ensure that the land that is worked on is safe for those who work on it? I cannot see that there is any change of degree in other people coming on to the land, or that any extra standards are required, other than those that exist under health and safety measures at present.
Mr. Garnier: In that question, the hon. Gentleman-- I do not know whether he speaks on behalf of the whole of his party--portrays a complete misunderstanding of the nature of the balance of risk and the concept of proportionality under the European convention on human rights. The Human Rights Act 1998 was passed with his support, and he ought really to study the jurisprudence under that system of law rather more closely before making such interventions.
Of course all employers have a duty of care to look after their employees, whether they work in a factory or on the open land. However, the size of the problem will be wholly different under the new access provisions. Thousands of people will be given the right of access to other people's land under this measure.
Mr. Garnier: Millions, as my right hon. and learned Friend says. It does not matter what the accurate number is; the principle is clear and concerns the proportionality of this invasion of property rights. I use that term not in an old-fashioned Tory sense but in a strict legal sense.
Mr. Barry Sheerman (Huddersfield): In a pompous sense.
Mr. Garnier: It is interesting that Mr. Angry, the hon. Member for Huddersfield (Mr. Sheerman)--who is well known for opening his mouth before he engages his brain--is prepared to snigger at the rights of his constituents and possibly others while the debate on compensation progresses. I regret that the hon. Gentleman--who is now the Chairman of a Select Committee--should behave as he has this evening. [Interruption.] If the hon. Gentleman wishes to witter on, may I suggest that he does so either on his feet--if has the guts to get on his feet--or outside this Chamber? [Hon. Members: "Oh!"] The Government are giving the public a right to roam; I suggest that the hon. Gentleman makes use of it.
The Government's consultation paper suggested that a refusal of compensation could be justified on the basis that the benefits of the proposal will outweigh its costs, but that confuses two questions. Even if the public interest justifies interference in principle, it is a different matter to say that the costs can be imposed without compensation. On the contrary, as has been seen, the European convention on human rights generally requires that, even where the public benefit outweighs any loss to individual owners, those owners should be compensated so that the loss is equitable and shared among the entire public, rather than imposed disproportionately on affected landowners. That underscores the points made by right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and my hon. Friend the Member for Beaconsfield (Mr. Grieve).
The consultation paper contained a number of inconsistencies; are we surprised, with this Government? For example, it said that the public benefit would accrue from "increased opportunities for recreation" which will improve public health and reduce social divisions. It also anticipated that
- increased walking in the open countryside
- proposals are not expected to result immediately in a sizeable increase in walking in the countryside but rather an expansion of the area over which people walk".
I trust that the Government will keep an open mind on the highly important issue of compensation. The fact that they were guilty of inconsistency in their consultation paper is worrying but not fatal. I urge the Minister to consider carefully the terms of new clause 16 and, with all due diffidence, invite him to say why the Bill could not be improved by its addition.
Mr. Hogg: If my hon. and learned Friend manages to persuade the Government to accede to the principle of new clause 16, will he urge on the Minister the desirability of setting the scheme in the Bill? And if the Minister insists on proceeding by way of regulation, will my hon. and learned Friend urge on him the desirability of making the regulations subject to the affirmative resolution procedure?
Mr. Garnier: I am most grateful to my right hon. and learned Friend. One of my great concerns over the past three years--and, indeed, when we were in government--has been that Ministers have taken unto themselves powers to make legislation by regulation and secondary powers, not allowing the House properly to consider the true effect of the powers that they are giving themselves. Let me take an example from the legal affairs portfolio. Under the Access to Justice Act 1999, the Lord Chancellor gave himself 17--or it may have been 27--regulatory powers to create law without this House being able to deal with it, either in a Bill or in the more acceptable way of dealing with secondary legislation mentioned by my right hon. and learned Friend the Member for Sleaford and North Hykeham.
An Act of Parliament that conflicts with a convention--especially a convention that the Government have deliberately brought into domestic law--may please the Treasury now, but it will not please the Treasury when the legal challenges start in the courts.
A solution may be found in the National Parks and Access to the Countryside Act 1949, which allowed a five-year period for any damage to become apparent. If there is no apparent need for compensation within five years, the Treasury will not suffer. If there is, it is just and sensible for compensation to be paid; it would be in compliance with the convention--not to mention the European Union charter of fundamental rights about which we are beginning to hear more.
I trust that the Minister has listened carefully to the points that I made on behalf of the Opposition and of all people who are interested in fairness under the Bill. I hope that he will give us some cogent reasons for his view--if such it is--that the new clause should not be accepted.
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