Examination of Witnesses (Questions 420-439)
JONATHAN SHAW
MP, MS HELOISE
TIERNEY AND
MS ANN
BENNETT
18 JUNE 2008
Q420 Mr Cox: Forgive me. There is
no explicit presumption for compensation, but to deprive some
of the incidences of ownership, some of the rights of ownership,
gives rise to a putative invasion of Article 1, Protocol 1 and
then it is a question of whether it is a just balance.
Ms Bennett: It is only in extreme
cases of control of use that compensation might arise at all,
and we are going to avoid any of those extreme cases.
Q421 Mr Cox: By your exemptions.
That is why I asked the question of the Minister that I did.
Jonathan Shaw: You have responded
positively to my decision that we are going to exclude parks and
gardens.
Mr Cox: Natural England does not agree
with it, as you probably know. Natural England is an organisation
that wants to seize power to itself.
Q422 Chairman: Just before we get
too carried away, let us hear what the Minister has to say.
Jonathan Shaw: I think we have
to see that in the spirit of the way in which we intend to go
about this very important project.
Q423 Sir Peter Soulsby: Do you not
see the enormous potential here for applications for judicial
review in these circumstances?
Jonathan Shaw: As I say, I am
happy to help business, but not lawyers on this occasion, with
this piece of legislation. They certainly, if there were compensation,
would get the most money. We can through Parliament come up with
a set of procedures that are fair, strike a balance between the
public and the private landowner and a process where people can
have representation, and ultimately judicial review.
Q424 Sir Peter Soulsby: Might it
not be better to build in some process for review, say using the
Planning Inspectorate or something of that sort, that would obviate
the necessity for going to judicial review?
Jonathan Shaw: In terms of lessons
learned, you have answered about lessons learned in terms of money
and I have referred to CROW. There were about 3,000 appeals through
CROW that changed three per cent of the map. One needs to strike
a balance in terms of how you set up a system that is going to
use a public resource. We learned a lot of lessons from CROW,
we have put in place the duty, I have said about parks and gardens,
there will be opportunity for people to make representations to
the Secretary of State, there is a whole process where people
are involved at the beginning and the end, and what I would say,
Chairman, on that is it might be something that the Committee
might want to assist the Department with in terms of what role
Parliament might have in terms of scrutinising that area of appeal.
Q425 Chairman: This whole conversation
has really come about because when Mr Johnson from Natural England
came before the Committee, he took a rather different view about
parks and gardens compared with what we understood to be Defra's
intention in the draft legislation, and it would appear that Mr
Johnson seemed to be rather enthusiastic in filling in these gaps
that you have identified by including in that access to parks
and gardens and, as a result of that, organisations like the CLA
have come up with some examples, for example, somebody who had
a hotel with land going down to the shoreline and it was for the
exclusive use of residents, for example, wedding parties, taking
photographs, they did not want various people wandering across
in the middle of their wedding ceremony, and that therefore if
there was not that exclusivity for those facilities to be offered
to guests and clients, there would inevitably be a potential business
lost to such an enterprise. That is the crux of this matter. Are
you saying that, beyond peradventure, Defra are going to say "no"
to Natural England, who might say, "Look, there is a couple
of hundred yards across the bottom of this garden here which will
just nicely join the thing up," and if that happened to be
in the middle of a hotel in the way I have described, you are
going to say, "No, we're not going to have that because that
is just too much trouble and this is not what the legislation
is about"?
Jonathan Shaw: The hotel that
might be the CLA's reference would be on Burgh Island, I believe,
which I visited with Paul. People enjoy access on to that island,
and there was some concern about parks and gardens, and part of
that visit to the South West was to inform me, to help me make
that decision, but there was not an intention, even if we had
agreed, because we have never said that we want to go through
parks and gardens. Natural England made that point.
Q426 Chairman: You are going to their
reception tonight as their guest, so they will be giving you a
hard time.
Jonathan Shaw: Sadly, I am not.
I am going to the South West.
Q427 Chairman: We are obviously,
sadly, going to be without the benefit of your view, but just
to come back to the specific point, is it the intention of your
Department to stick to the view that parks and gardens are not
going to have pathways put through them in pursuit of this legislation?
Jonathan Shaw: Yes. That is on
the draft Bill.
Chairman: I know it is, but Natural England
take a different view, you see. That is the slight problem.
Q428 Mr Cox: What they are asking
you to do is put Natural England in their place. The field is
yours.
Jonathan Shaw: Natural England
are our advisers but they also have an advocacy role, so they
have a degree of independence, and those are the terms under which
we set up Natural England, and I am very comfortable with that.
We should be comfortable rather than putting people in their places,
Mr Cox. It is about having a discussion. We do not want conflict
and that is the whole spirit of this legislation.
Mr Cox: That is a politician's answer.
Q429 Chairman: Exactly. Can we just
be a bit more specific? You are quite right that they have an
advocacy role, because they are going to make recommendations,
after consultation and discussion, to the Minister of the day
about what the line of route is going to be, and when that occurs,
individuals who are affected can make appeals, as I understand
it, to the Minister before the Minister finally resolves the matter.
My question again is, as far as the legislation is concerned,
as I understand it, the way you have written it at the moment,
parks and gardens are outwith the pathing arrangements. Natural
England took a different view. They indicated that they would
like to see parks and gardens potentially included. So there is
a clear difference between your advisers and your policy.
Jonathan Shaw: Yes.
Q430 Chairman: What I would like
you to make clear to us now is, if Natural England decide to press
ahead and make recommendations to do something which you in this
draft legislation say you are not going to do, are you going to
stick by the clear letter of what is down in the draft legislation
and say "no", or are you saying, "Oh, well, because
they have an advocacy role, we will listen to them. There might
be the odd occasion on which we would say yes"?
Jonathan Shaw: Chairman, there
will be examples where they have had an advocacy role and put
things to us, for example, on set-aside.
Q431 Chairman: Could you answer the
question I put?
Jonathan Shaw: It was a long question,
and I will give you an answer in a couple of chunks, if I may.
In terms of when our advisers provide us with advice, that is
what they do: provide us with advice, and I make decisions on
that advice. I do not always have to agree with that advice. Secondly,
they provide advice and advocacy to the Department. Sometimes
we accept that advice, sometimes we agree with that advocacy,
other times we do not. That is the nature of the organisation
that we set up. We did not set them up to agree with us or just
to follow our lead. That is the point. That is healthy.
Mr Cox: What are you going to do on this
occasion? That is what the Chairman is asking you. Are you going
to behave like a sheep or a goat?
Q432 Chairman: Can we just look at
the words? It says in the Bill "Excepted land categories
under schedule 1 of the CROW Act which will remain unchanged."
Jonathan Shaw: We have published
the Bill. How much more explicit would you have us be? I took
the advice, listened to the advice, I made the decision and I
put it in the Bill. Then I am here saying parks and gardens are
exempted. I do not think I can dress it up any more than that,
Chairman. Goat, dog, whatever animal you want to take, Geoffrey.
Q433 Chairman: Minister, if it is
so clear, why is it that Natural England indicated a line of thought
which appeared to be different from what, as you say, is so explicit
in the Bill? The question, to bring it to its simplest, is does
the question of these exempted areas like parks and gardens remain
an absolute as far as the application of this policy is concerned?
Jonathan Shaw: It is in the Bill.
Q434 Chairman: I know but you have
given—
Jonathan Shaw: It is in black
and white, Chairman. Do you want me to write to you? I understand
your motivation to try and explore differences between Natural
England and Defra. I am very relaxed about the differences. I
have listened to the advice, I have thought about it, I have gone
down and had a look at the South West, and this is my decision.
Q435 Miss McIntosh: Ms Bennett just
said in response to an earlier question—she is your legal
adviser—the Bill gives Natural England the right to position
the route in a flexible way.
Jonathan Shaw: Yes. Not parks
and gardens.
Q436 Miss McIntosh: Who is saying
it is not parks and gardens?
Jonathan Shaw: It is in the Bill.
Q437 Miss McIntosh: They are determining
the route and you have just told us it is flexible.
Jonathan Shaw: Chairman, it is
in the Bill. I do not know how much more clearly I can say this.
I think other people understand. I am getting nods here, so other
people understand. It is in the Bill, it is not parks and gardens.
I understand you want to drive a bit of a wedge maybe, tease it
out. It is not there.
Q438 Chairman: We will come back
to it.
Jonathan Shaw: I hope you do not
come back to it but if you want to, it is up to you.
Q439 Paddy Tipping: It is in the
Bill, exactly as you have described it. Can I just say: you have
got it wrong. Heloise Tierney told us you had got it wrong because
a moment or two ago you said there may be a case for permissive
paths through parks and gardens.
Jonathan Shaw: Permissive?
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