Examination of Witness (Questions 60-79)
MR PAUL
JOHNSON
4 JUNE 2008
Q60 Mr Cox: Would you recommend it
should not happen?
Mr Johnson: I think the reason
why we took the view that compensation should not normally be
necessary is because—
Q61 Mr Cox: Normally?
Mr Johnson:—the sort of
approach that we intend to take is designed to avoid those kind
of issues.
Q62 Mr Cox: I fully understand that
reason, but, forgive me, it does not answer my question, because
you have just inserted the word "normally". It is the
exceptional or abnormal case that I am talking of here. If you
exclude even the possibility of compensation, I do not see how
you have the latitude in every case to achieve a fair balance,
and, frankly, I would question whether it is compliant with Article
1, Protocol 1 of the Convention on Human Rights. Have you looked
at compatibility? Have you taken advice?
Mr Johnson: Yes, of course. As
you will appreciate, ministers have to certify that bills are
compliant, and the view is that this is compliant, yes.
Q63 Mr Cox: Can I move on to the
next question. As I understand it, land exclusions and restrictions
under the CROW Act, which have already been accepted by the Government
as having been, under the CROW Act, entitled to be excluded, will
now come under land designated as coastal land. Can you tell me
what are the specified circumstances in which an exclusion or
restriction made under the CROW Act will be reviewed by Natural
England and possibly, effectively, overturned?
Mr Johnson: Just to set that in
context, it is not the position that CROW land on the coast will
automatically swap to this regime. Essentially what will happen
is, depending on where the trail goes and what spreading room
for the margin is proposed by Natural England, that will determine
whether it keeps its CROW status or whether it, in effect, swaps
to this regime. The normal principle would be that if Natural
England has given a direction for land management reasons, or
whatever it might be, on the CROW land, the chances are it will
be necessary to the same extent under the new regime and we will
replicate that under a direction under this system. That sounds
slightly bureaucratic, but you can see the underlying thinking,
which is that we do not want two separate regimes bumping up against
each other. It is a piece of temporary pain for some longer-term
gain and having a unified system. So I do not immediately have
any circumstances in mind where it would be appropriate to, as
it were, cancel a direction that is already in existence.
Q64 Mr Cox: But there is provision
for review, is there not?
Mr Johnson: To take perhaps a
more real example, it might be, for example, that the occupier
of a particular piece of coastal CROW land has been in the habit
of taking his full 28-day allowance and closing it for a particular
month, or whatever it might be, which, of course, he can do without
any reason or without there being any particular grounds for doing
so—it is effectively a voucher book of closures that he
can use at his discretion—and that will no longer be the
case under this regime. So, if it were exclusions or restrictions
of that type, then they would fall by the wayside and we would
not replicate them, unless, in order to give effect to necessary
protection for land management or whatever, we need it instead
to make a direction. So it is substituting for the discretionary
and, as it were, uncontrolled aspects of CROW a necessity-based
regime, if you like.
Q65 Mr Cox: What it is doing, and
what all of the answers that you have given up to now are doing,
is really collecting in the hands of Natural England a very considerable
amount of power, as you call it, for example, flexible power,
but that is a considerable amount of power to Natural England,
with very little in way of redress, except by seeking judicial
review of it, is it not?
Mr Johnson: I do not think that
is right. Going back to the point I was making a moment ago, you
have got the basic foundation of the coastal access duty and the
other provisions in the draft Bill, you have got the way in which
the order will give effect to rights which will in itself to some
extent constrain the sort of land that is affected, as will the
excepted land list, you have got the detailed provisions of the
scheme, which we have already consulted on comprehensively and
which we will continue to get views about and to finalise, and
literally going across all the main land uses and land covers
and saying the approach we will take. So I think no-one is going
to be able to say we did not know you were going to do that. The
whole point about what we are doing is to create a kind of transparency
about what approach is likely to be taken.
Q66 Mr Cox: It is the fact that you
can do it, but these people have gone through a statutory process,
they have had it excluded, they have got certainty in their land
management and they may not like it, but they now know what their
rights are, what their obligations are, and so on. Now you are
going to throw all those overboard, review them, and you are going
to refer them all, in that you will be able to look at whether
or not the restrictions and the exclusions should continue that
have been granted under the CROW Act, and what you are saying
is, "We may continue them or we may not"?
Mr Johnson: Let me try again.
If it was necessary for land management, safety, other reasons,
in terms that are permitted by CROW, for Natural England to give
a direction excluding access rights or requiring that they be
exercised in a particular way, there is a very strong probability
that that necessity will still exist and, therefore, we will replicate
it, and my hunch would be that the vast majority of the existing
directions would simply be replicated under this new regime.
Q67 Mr Cox: But then the land owner
will simply have to trust Natural England to make that judgment.
Mr Johnson: Yes. I think that
is quite a good starting point for this whole initiative.
Mr Drew: Can we go on to the appeal process?
Q68 Paddy Tipping: We have hung all
this on the CROW Act in some ways. There was an appeal process
under the CROW Act. There is not in this. Why is that?
Mr Johnson: I think it depends
what you call an appeal process. Essentially, what the draft Bill
does is to go with the 1949 model rather than the 2000 model.
In the 1949 model you propose a line for a national trail and
people make representations on it, Natural England comments on
those representations, then the Secretary of State decides what
is to be done. That is exactly the model we have got here, a third
party adjudication of people's objections and worries and representations
about what is being proposed by an executive authority. That is,
for my money, what an appeal system does.
Q69 Paddy Tipping: What is the third
party adjudication?
Mr Johnson: The Secretary of State
adjudicating on what Natural England proposes. Can I remind us
that that is exactly what happens on CROW. The appellate authority
is the Secretary of State, normally delegating to the planning
inspectorate, but essentially the appeal lies to the Secretary
of State.
Q70 Paddy Tipping: But in the tone
of the discussion, you have heard that there will be land owners
who will not be prepared to come to an agreed solution with you.
There will be an intractable difference. In those cases what will
happen?
Mr Johnson: We hope that there
will not be many of those, and actually, call me naive, we expect
there will not be many of those because we think there will normally
be a fairly obvious way to do it. Clearly, the discussion will
throw up difficulties. Sometimes we will be able to accommodate
those difficulties; there may be occasions when we cannot. We
may end up disagreeing, hopefully in a friendly way. The occupier
will be able to make representations and, if the Secretary of
State agrees with those representations, then our proposals will
be set aside and his will be substituted. That is how these systems
work. Clearly, this is not a consensus regime, but it is a highly
consultative regime where we will do what we can to accommodate
people's worries and sensitivities.
Q71 Paddy Tipping: But at the end
of the day, if a land owner objects fundamentally, if the Secretary
of State is inclined to decide with the decision or recommendation
of Natural England, as Geoffrey says, the only recourse is judicial
review.
Mr Johnson: Correct.
Mr Cox: Which is highly expensive. In
this situation he will be obliged, most certainly, to take a solicitor's
advice. As soon as you turn up on his doorstep saying, "I
want to walk across your garden fence or behind your garden fence",
like this person owning the combe, the first thing they are going
to have to do is ring their solicitor, and they are automatically
being charged hundreds of pounds just to take that advice. They
are not going to start off being very friendly towards you, are
they?
Mr Drew: I think you ought to declare
an interest.
Mr Cox: I am a lawyer actually.
Mr Drew: A very cheap one!
Q72 Mr Cox: That is the problem.
They are going to immediately have to call their solicitor. They
are going to want advice on their legal obligations, on their
rights in this situation; so it is going to involve a cost.
Mr Johnson: They clearly would
have that option. Some people will turn to solicitor, some people
will turn to a land agent, others will deal with this directly.
That is what happened under CROW. You are right that some people
prefer the comfort of having professional representation and all
the rest of it, but in the end that is a personal decision. There
is no obligation on people to do those things.
Q73 Mr Gray: Can I press you further
on this. Two things. First, you say, we do not really need an
appeal process because we are confident that 99% of the time it
is all going to be fine and sorted out by negotiations and we
will be hunky-dory. If indeed that were the case, presumably there
would be no problem with having an appeal process to deal with
the very small number of cases where it is not done by mutual
consent. Why can we not have a third party appeal process of some
kind or other to deal with that tiny number of occasions?
Mr Johnson: I think, to be honest,
it is better if you ask the Minister those questions, because
in the end it is about what the nature of the third party adjudication
should be, but, in our view, what is proposed is proportionate
to the need.
Q74 Mr Gray: Do you not think it
might be right, if someone is objecting very strongly and you
and they cannot agree, to have some form of tribunal or some sort
of adjudication to decide whether or not they are right in protecting
their privacy and the land owning rights without financial loss?
Mr Johnson: I think it is absolutely
right, and that is exactly what the draft Bill provides.
Mr Gray: It does not. The draft Bill
provides for the Secretary of State to do that; whereas, presumably,
the presumption is that the Secretary of State would agree with
you. It is a little bit Stalinist here. We are going to have a
quango who is going to say we are going to go that way and a land
owner who says, "I do not like that." Who decides? The
Secretary of State decides. What about having a third party, some
form of tribunal.?
Mr Drew: I think that is a question for
the Minister. I think we have got Natural England's take on it.
Mr Gray: They want to drive it through
no matter what happens, yes.
Q75 Mr Drew: I will let you ask that
question of the Minister.
Mr Johnson: It is worth reminding
ourselves again, though, that the CROW model, which is called
an appeal model, is to the Secretary of State.
Mr Gray: It is a shame that a good scheme
like this is going to result in an awful lot of people being cross
about it.
Q76 Mr Williams: You say the Secretary
of State determines CROW appeals, but, surely, I thought there
was an inspector who sat on them?
Mr Johnson: Yes, but he sits on
behalf of the Secretary of State.
Mr Cox: The inspectors are very well
established and impartial in this case. You do not have any inspector.
It goes to the civil servants in the department. There is no inspector.
Q77 Mr Drew: I think we have got
plenty of evidence to ask the Minister a question on that, but
I am going to move us on quickly, before we all disappear, to
liability, which you have already touched on. It would help me
if you would clarify what your understanding of the Act is in
terms of lessening the liability on both the land owner but also
minimising the liability on the state in terms of the type of
things that you said unfortunately can go wrong. Can you explain
why you think that is right, and is it sufficient in what is being
proposed?
Mr Johnson: Yes. Briefly rehearsing
the situation of occupier's liability, Natural England warmly
welcomes the approach the draft Bill takes, because, as I mentioned,
it is pretty much the lowest form of occupier's liability that
would exist anywhere on any type of land, but we think it is right
and proper that when people are using the trail and the spreading
room, the message from us and in publicity and, hopefully, some
sort of Coastal Access Code should be that it is for you to keep
yourselves safe, keep your kids safe if they are with you, keep
any dependents safe, recognise that the coast can be a dangerous
place and just take care. That is the basic message, rather than,
"You will be looked after wherever you go", because,
clearly, that is not an appropriate message on the coast. The
fact that the Bill knocks out the ability to sue, not just for
natural features like cliffs, and so on, but also any kind of
non-natural feature, whether it be a harbour side or whether it
be a trailing rope or whatever it be, has to be good news, I think,
and to our mind is essentially common sense. There is, of course,
some residual protection in the sense that clearly, if an occupier
set out to injure people, they would not be exempt from civil
action, and neither should they be, but that is obviously a very
extreme example.
Q78 Mr Drew: Can I pick up one thing
which again we did touch on but I want to clarify. This is the
issue of liability in regard to ownership of animals. You will
know that Stephen Crabb did try and introduce a Private Members
Bill into this place to actually clarify whose responsibility
it was in terms of the ownership of animals. Do you think that
would be helpful in regard to this legislation or is that just
one of those contingencies that one has to take account of if
and when an accident happens.
Mr Johnson: We think it is a real
issue. I think there is pretty much a consensus among the key
interests actually that there is a real issue that wants resolving.
I think it is a great shame that Private Members Bill was not
allowed to go through, and our policy is that at some point an
opportunity needs to be found to put that right. It is difficult
to see how this Bill can do it, because of the scope issue, but
hopefully another vehicle will be found.
Q79 Mr Williams: I took part in the
attempt by Stephen Crabb to take forward his legislation, and
there was a suggestion at that stage that it could be introduced
just for the purposes of this legislation. Have you any thoughts
on that?
Mr Johnson: That is really a matter
for the Minister, but you can see that there would be difficulties
with scope and a sort of two-tier regime. It is really a question
that you should ask the Minister.
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