Countryside and Rights of the Way Bill

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Mr. Mullin: The matter need not detain us long because, as the hon. Member for Somerton and Frome said, we are arguing about drafting. The Bill broadly follows the model of the National Parks and Access to the Countryside Act 1949. If ever a piece of legislation has stood the test of time, that one has. It lists excluded activities, and that list has been updated to reflect modern recreational pursuits.

As my hon. Friend the Member for Pendle suggested, amendments Nos. 76 and 123 risk ruling out innocuous activities such as taking photographs, bird watching, eating a sandwich or even sitting to admire the view. I appreciate that that example must seem ridiculous to hon. Members, but the Member for Somerton and Frome mused aloud as to what a clever lawyer might do with such a provision. We have one or two clever lawyers in this place; indeed, one is about to intervene.

Mr. Llwyd: My question is simple. How would inserting the words ``on foot'', as proposed in amendment No. 123, prevent a person from using a camera? I do not see the point.

Mr. Mullin: That would not be the effect, of course. The hon. Gentleman answered his own question in his earlier remarks—the insertion is unnecessary. We chose the 1949 formula, which has withstood the test of time. The argument is only about drafting and the difference between us is not great. We are all attempting to get to the same place, but the Government have chosen the route of listing excluded activities. That route was chosen in the past and it worked. Amendments Nos. 76 and 123 would also discriminate against people in wheelchairs or pushchairs, which I am sure was not the intention of hon. Members.

Mr. Clifton-Brown: How on earth would the substitution of ``use'' for ``remain on'' under amendment No. 155 discriminate against disabled people?

Mr. Mullin: One or two clever lawyers advise me that activities that might seem innocuous to hon. Members might be ruled out were we to proceed as the amendments suggest. I agree with the hon. Gentleman that, for those of us who are not clever lawyers, there often seems to be no great problem in approaching the matter from any of the directions suggested by hon. Members. However, there is a danger of trying to be prescriptive and finding ourselves in a muddle. We are trying to allow everything that is not specifically excluded.

Mr. Heath: One would have to be an extremely clever and devious lawyer to construe ``use'' as excepting innocuous activities. That could not possibly exclude walking or anything associated with walking.

Mr. Mullin: The words ``on foot'' would exclude the use of a wheelchair or pushchair.

Mr. Heath: Every time that we have an argument on one amendment, the answer refers to another amendment. We are having a rather confused debate on the group.

Mr. Mullin: That is because help does not necessarily arrive in the order in which the questions are asked. I return to the central point—we are dealing with a formula that has stood the test of time and which is not complicated. There is no need for us to get bogged down in a long complex debate. Everybody has suggestions for dealing with the matter and we propose to follow the 1949 example, suitably updated to take account of modern recreational pursuits.

Amendment No. 155 would not change the extent of the new right of access because activities excluded under schedule 2 would continue to be excluded. It is therefore unnecessary.

Another piece of help has arrived—it is rather unhelpful actually. It opens up a little pit into which I do not propose to climb.

Mr. Clifton-Brown: Since we are discussing the Freedom of Information Bill on the Floor of the House today, will the Minister outline what the note says?

11.45 am

The Chairman: Order. I am grateful for everybody's assistance. It is part of my responsibility to ensure that neither I nor hon. Members are confused, so we should keep to the amendments.

Mr. Mullin: That is a good idea.

The amendments are unnecessary. We have a formula that has worked, so why mess with it? I respectfully suggest that they should be withdrawn.

Mr. Green: Seldom have I heard a Minister be less convincing in asking for a group of amendments to be withdrawn, having just received a key piece of information which he decided not to share with the Committee in case it did not help his case. I commend the Under-Secretary for his commitment to at least partial openness—he revealed that he was being passed profoundly unhelpful information—although, sadly, we could not persuade him to share it with us.

The Under-Secretary's central point is that the Bill is based on the 1949 Act, whose exclusions have been updated. He has made one of my arguments for me. We know that legislation on the subject does not come round often. It would therefore be better to have a robust definition here, than have a list of exclusions that we know, and which experience from the 1949 Act tells us, will become out of date. We could attempt to improve on that.

Mr. Mullin: I should have dealt with that point at greater length. There is a power to amend the list of restrictions by regulation because we obviously cannot predict what recreations will be popular in 20 years' time. Schedule 2, paragraph 3, is the relevant paragraph.

Mr. Green: As I said earlier, on the basis that it is better not to have too many regulations changing legislation, it would be preferable for the House not to have to make new regulations regularly. Each action might be relatively controversial, no doubt having a small number of enthusiasts, with a larger number of people objecting to change. Points of principle might arise that would make dealing with a situation through legislation inappropriate. I am not desperately convinced by the Under-Secretary's point.

I assure the Under-Secretary that I do not speak as a clever lawyer, either, but it is hard to imagine that the current formulation will necessarily be robust in the hands of the legal profession. ``Remain on'' seems more vague than ``walk over'', and vagueness in legislation gives the legal profession the opportunity to enjoy itself and to attempt to change the original intention of legislation.

Mr. Clifton-Brown: Does my hon. Friend not think that, if a Minister says that he has had legal advice that something would not happen, he should be able to tell the Committee what the advice was and why a particular amendment should not be accepted?

Mr. Green: My hon. Friend makes a correct point in an ingenious way. If the Committee is to be taken seriously, it is important that its members receive the detailed information that is made available to Ministers. That is a matter for the Under-Secretary and his conscience.

Mr. Mullin: Hang on!

Mr. Green: I give way.

Mr. Mullin: The piece of paper that I joked about does not refer to legal advice, which is simple. Amendments Nos. 76 and 123 risk ruling out innocuous activities, which I listed, and amendment No. 155 would not change the extent of the new right of access and is unnecessary.

Mr. Green: I can see that the best ingenuity will not tease out what that now notorious piece of paper said.

The point at issue is whether the Bill is robust enough to withstand legal stretching. The words ``remain on'' cover a multitude of activities. The hon. Member for Pendle took that to a deliberate and slightly foolish extreme. It would also be extreme to argue that people could decide to stay on land for days, weeks or months while praying in aid this clause. The Under-Secretary would not want that to happen, but the Bill as drafted will fall into the trap against which he is warning me.

Mr. David Kidney (Stafford): Will the hon. Gentleman confirm that he does not intend to prevent people in wheelchairs or with pushchairs from having access?

Mr. Green: Indeed—the Under-Secretary was right about that. When we debated what amendment No. 16 the most general amendment in the group—meant by open air recreation, I invited him to produce a better formulation. The legal pitfalls that he sees in the amendments exist in the Bill. We are trying to help the Government to produce a more robust piece of legislation that will not leave people in the courts for years to come. However, it is clear that the Under-Secretary is sitting on advice and is not inclined to accept amendments. Given that we might want to return to this matter, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Paice: I beg to move amendment No. 18, in page 2, line 16, leave out from `(a)' to `of' in line 17 and insert

    `consists'.

The Chairman: With this we may discuss the following amendments: No. 19, in page 2, line 17, leave out `wholly or predominantly'.

No. 209, in page 2, line 17, leave out `predominantly' and insert

    `almost entirely'.

No. 20, in page 2, line 17, after `predominantly' insert

    `that is, 75 per cent. or more of the area,'.

No. 22, in page 2, line 17, leave out `moor'.

No. 24, in page 2, line 17, leave out `, heath or down' and insert—

    `or heath'.

No. 23, in page 2, line 17, leave out `heath'.

No. 119, in clause 6, page 4, line 14, leave out `wholly or predominantly'.

No. 210, in clause 6, page 4, line 14, leave out `predominantly' and insert—

    `almost entirely'.

Mr. Paice: Unusually, we are trying to determine where the Bill differs from the original consultation document. The Government initially referred to mountain, moor, heath and down, but the Bill's definition of ``open country'' is what appears

    to consist wholly or predominantly of mountain, moor, heath or down.

That is a significant distinction. The amendments try to extract how the Government define ``predominantly''. I do not pretend to be a lawyer, but I am not aware that that word is regularly used and has a standard legal interpretation. We are worried that its use will depend on a subjective judgment of whether land should be classified as open land.

A range of options is available. We have proposed two separate menu items. The first is to remove ``wholly or predominantly'', which would return the Bill to the Government's original definition. The second option is for ``predominantly'', which is not defined in the Bill, to mean 75 per cent. or more of an area, although we could choose any percentage. The amendment tabled by the hon. Member for Somerton and Frome suggests using the phrase ``almost entirely''. I do not dissent from that alternative. The key point is to determine what the Government mean by ``predominantly''.

 
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