Huw
Irranca-Davies: I can confirm that the Isles of Scilly are
definitely not part of Wales. The clause, as it stands, makes it clear
that the coastal access duty and other matters relating to it that are
provided for in part 9 of the Bill do not, as has been said, apply to
the Isles of Scilly. It goes on to say, however, that the Secretary of
State may make an order providing for the application of any of the
provisions to the Isles of Scilly and may, in any such order, specify
modifications to the provisions in respect of the Isles of Scilly.
Before making such an order, the Secretary of State must consult the
council of the Isles of Scilly.
To return to
the first point made by the hon. Member for St. Ives, if the Isles of
Scilly were to beg—I cannot imagine them begging us, but they
may come to us at some point in future and say that they would like to
be taken into account in the provisions, the clause allows us to do
that. The clause makes provision for an order to be made under part 4
of the National Parks and Access to the Countryside Act 1949, applying
that part of the 1949 Act as amended by the Bill to the Isles of Scilly
as if they were a separate county. That arrangement mirrors provisions,
both in the Countryside and Rights of Way Act 2000 and in the 1949 Act.
Rather than rewrite those Acts, we are mirroring them to achieve the
same effect. The clause also provides that an order may be made under
CROW, applying part 1 as amended by the Bill, to the Isles of Scilly.
If they were to beg or ask politely to come within the provisions, that
can be done.
The second
hypothetical problem posed by the hon. Member for St. Ives was about
whether we would decide to force them, in a draconian old-style
colonial Government manner, to be included. As I said, before making
such an order, the Secretary of State must consult the council of the
Isles of Scilly and I challenge any future Secretary of State to go
against the will of the council of the Isles of Scilly. I confirm that
in the process of introducing the clause—and the wider parts of
the Bill as well—we have regularly been in touch with the
council of the Isles of Scilly. As the hon. Gentleman
mentioned, it is content with the way in which the Bill has been
drafted. It does not wish the Isles of Scilly to be included in the
legislation at the present time, but the clause holds out the
possibility of doing so if things were to change in the future. To
reiterate, we are following the precedents, in respect of the Isles of
Scilly, that were set out in CROW under the National Parks and Access
to the Countryside Act 1949. They are similar to the provisions that we
have introduced for the Isle of Wight as
well. Andrew
George: I am grateful to the Minister for that response
and I am content.
Question
put and agreed to.
Clause 301
accordingly ordered to stand part of the
Bill.
Clause
302The
Crown Question
proposed, That the clause stand part of the
Bill.
Andrew
George:Briefly, once again, I simply wish to probe the
Minister on the advice he has received on subsection (2) (c) in
relation to the Duchy of Cornwall. There are a number of constitutional
issues that apply to the Duchy of Cornwall and I am interested to know
what advice he has received in drafting the clause. There is currently
a debate, which I am sure he is well aware of, about the duchy’s
relationship to the Crown. I am sure that defining the duchy as Crown
land for the purposes of the Bill is legitimate. However, what advice
did he seek on the duchy’s constitutional status? Since the
duchy was established by charters in 1337 to 1338, the Duke of Cornwall
has owned the foreshore around Cornwall and the Isles of Scilly. In
England—the hon. Member for Newbury might be interested in
staying awake for this bit—the foreshore is primarily owned by
the Crown. There are also other very interesting constitutional issues
relating to the Duchy of Cornwall. If one dies intestate in Cornwall,
it is quite different from dying intestate on the other side of the
frontier in England. The Duchy of Lancaster, as I understand it, is
much more accountable to Parliament than the Duchy of
Cornwall. 11.15
am The
fact that the UK is without a codified constitution gives rise to a
number of constitutional conundrums, given the accretions to the
English and later British monarchy from 1066. Although I do not wish to
go back over the whole history of the issue, what is interesting in
relation to this matter is the constitutional basis on which the duchy
is incorporated. Those who debate the role of the duchy and its
relationship to the Crown point out that the duchy often defines itself
at the same time in its constitutional role and as a distinct private
estate. I would be interested in any clarification or light the
Minister might be able to throw on the issue in relation to the
clause.
Huw
Irranca-Davies: Once again, I thank the hon. Member for
St. Ives for raising the issue. I am not a constitutional expert beyond
the fact that it is my role
as a legislator to have some knowledge of constitutional issues. The
clause has been drafted by, and included on the advice of,
parliamentary counsel, taking into account the issues raised by the
hon. Gentleman, and they are content with it. Representatives of the
Crown estate and the duchies have been fully involved and consulted and
are content with the Bill constitutionally. It is worth reiterating
that we have a clause that says that the provisions for creating an
English coastal route and access to coastal land apply to the Crown and
all Crown land, as they do to any other land. That includes land
belonging to the Crown and Her Majesty’s private estates, the
Duchy of Lancaster, the Duchy of Cornwall and Government Departments.
It sets out the appropriate authorities that may act on behalf of the
Crown in respect of those different categories of Crown land. We
believe that Crown land should be included in the same way that any
other land will be. For example, the Crown estate owns about half of
the foreshore around the English coast and has traditionally permitted
public access. Under the provisions in the Bill, once fully implemented
through the order under section 3A of the CROW Act and the procedures
set out in the 1949 Act, there is likely to be public access as of
right to the foreshore and to other coastal Crown land, other than
where it is excepted or excluded. I might earlier have said
“Crown estate” when I should have said “Crown
land”.
Andrew
George: I am grateful to the Minister and it is helpful to
have the advice of his counsel on the record.
Question
put and agreed to.
Clause 302
accordingly ordered to stand part of the
Bill. Clause
303 ordered to stand part of the
Bill.
Clause
304Powers
of national assembly for
wales Question
proposed, That the clause stand part of the
Bill.
Mr.
David Jones (Clwyd, West) (Con): I want to speak briefly
on the clause, which confers primary legislative competence on the
Welsh Assembly by inserting two new provisions—matters 16.2 and
16.3—in field 16, which deals with sport and recreation, of the
Government of Wales Act 2006. Under matter 16.2, the Assembly would be
empowered effectively to create a coastal route in Wales. Matter 16.3,
to which I propose to return, would empower it to secure public access
to relevant land on the coast. The Assembly provided a memorandum on
the background to its application for the powers contained in clause
304 and an indication of how it proposes to exercise them. Will the
Minister comment on the indication given in the Assembly’s
memorandum that, while the Bill provides for the English coastal access
provisions to be binding on the Crown, any provisions in equivalent
Assembly legislation would similarly bind the Crown? The memorandum
stated:
“However,
it is not the Assembly Government’s intention that any Assembly
measure”— the
legislation developed pursuant to the powers conferred in matters 16.2
and 16.3—
“should alter, or
permit the alteration of, the position with regard to access to land
used for purposes within the responsibility of the UK Government
without the agreement of the relevant Secretary of State. In this
context, land at the coast used for railways, airports...docks,
telecommunications, gas, electricity and for military purposes is
particularly
relevant.” The
memorandum was prepared relatively recently, in June 2009, but I would
appreciate the Minister’s confirmation on the record that his
understanding is that that intention of the Assembly Government
prevails. What would the position be if, for example, a UK Secretary of
State wished to withdraw or amend the consent given to the Assembly
Government for the preparation of the path? In such circumstances,
would the Assembly Government be bound to reconsider and divert the
route of the
path? I
also wish to raise briefly an issue about the interpretation of clause
304. “Coast” in that clause is defined
as “the
coast of Wales adjacent to the sea, including the coast of any island
(in the sea) comprised in
Wales”. That
is similar to the definition in clause 294, but there is a subtle
difference. In clause 294, the English
coast “means
the coast of England adjacent to the sea, including the coast of any
island (in the sea) comprised in England (other than an excluded
island).” An
excluded island is defined as one
that “is
neither— (a)
an accessible island,
nor (b)
an island specified by the Secretary of State by order for the purposes
of this
paragraph.” It
seems curious that inaccessible islands appear to be included in the
definition of “coast” in clause 304. There are many
inaccessible islands around the coast of Wales. If I climb to the top
of the hill behind my house I can see Puffin island, which is entirely
inaccessible. Perhaps of more significance are islands such as Ynys
Elli—Bardsey island—which is much larger but equally
inaccessible. Why is there a difference in definition in the Welsh and
English provisions in clauses 304 and
294?
Mr.
Williams: I rise briefly, out of interest.
Clause 304 includes an amendment to the Government of Wales
Act 2006 to include a new matter under the competence of the Welsh
Assembly, and yet when I proposed a similar amendment, the Minister
said that it was inappropriate in a Bill of this sort to add to the
Welsh Assembly’s powers. It seems that the Government are now
attempting to do just that. Why is this an appropriate place to achieve
what I believe would be a good
result?
Huw
Irranca-Davies: If I can start at the end, the hon. Member
for Brecon and Radnorshire has asked about the difference between this
discussion and one that we had previously. The difference is that the
powers for the inclusion of matters were placed in the Bill after
consultation with, and at the request of, the Welsh Assembly
Government, who see this as a possibly useful way
forward. I
will turn to the detailed points in a moment, because some of them
refer to how the Welsh Assembly Government will introduce the necessary
measures that underpin the matters inserted into the fields under the
2006 Act. Again, I risk reverting to my previous role, because the
clause confers important new legislative competences—in
parliamentary counsel terminology—on the National Assembly for
Wales in relation to public access to and routes for the Welsh coast.
It will add two new matters to field 16, sport and recreation, under
schedule 5(1) to the Government of Wales Act
2006. The
first matter enables the National Assembly for Wales to bring forward a
measure or measures for the establishment or maintenance of a route or
routes on the coast of Wales to enable the public to make recreational
journeys. The second matter enables the Assembly to make a measure or
measures securing public access to relevant land for recreational
purposes. Land will be “relevant” if it is at the coast
or can be used in association with either land at the coast or a
coastal route. I shall come on to the points raised by the hon. Member
for Clwyd, West in a
moment. Those
provisions are intended to add value to the Welsh Assembly
Government’s existing coastal access improvement programme,
which has worked well, by enabling the Assembly to clarify the extent
of public access rights to the Welsh coast and secure new areas of land
for public access, neither of which they can deliver through the
existing coastal access improvement programme due to limitations on
their powers.
I can confirm
for the hon. Member for Clwyd, West that the Welsh Assembly Government
briefing to which he referred, dated June 2009, is still valid and the
issues still hold. That is a straight, “Yes”, in response
to his query. As I mentioned in my preamble, the provisions are
enabling powers that allow the WAG to decide the appropriate way to
deal with islands. They may decide to limit access to islands, for
example, but, under the Government of Wales Act 2006, we insert matters
in the fields to allow the Assembly Government to bring forward
measures, subject to consultation, so that they have the flexibility to
take issues forward and that they are comfortable with that
position.
The hon.
Gentleman also raised the issue of railways and so on in list in the
same document. I confirm that defence, railways and so on are reserved
matters, so the briefing is still
correct.
Mr.
Jones: I am grateful for the indication that the Minister
has just put on the record. There is one matter that perturbs me
however. There are installations around the coast of Wales connected
with reserved matters. If, for the sake of argument, the relevant
Secretary of State, having consented to the creation of a path that
affected one of those installations, decided later that the path needed
to be diverted, would it be possible to go back to the Assembly and
say, “I would like you to divert your path
please.”?
Huw
Irranca-Davies: The question is whether the Secretary of
State can decide to change the route. If the WAG used their enabling
powers to pass legislation, it would be primary legislation, as the
hon. Gentleman knows. The Secretary of State could repeal it, but only
through primary legislation or an order under the Government of Wales
Act 2006. There is a route, but it is not
easy.
Mr.
Jones: It is not an easy route; it is a draconian route.
The impression given in the memorandum furnished to the Committee is
that the Assembly Government
would not create a route that affected an installation that was subject
to the sway of a UK Minister without the consent of that Minister.
Circumstances might subsequently change, in which case if the Secretary
of State went back to the Assembly Government and said,
“I’m sorry, but I’m afraid that that route is
going to have to be diverted,” is it the Minister’s
understanding that the Assembly Government would acquiesce and divert
the
route? 11.30
am
Huw
Irranca-Davies: The hon. Gentleman makes a good
point. If the route changed and the Secretary of State indicated that
it then impinged upon reserved matters, such as defence, he would make
his views known to the Welsh Assembly Government Minister and would
expect those views to be taken into account. As with the original use
of the powers given to WAG to develop a route, the way in which the
provision is set up means that the Secretary of State would have to be
engaged with on reserved matters in relation to any subsequent
alteration of the route. If the Secretary of State indicated that the
alteration impinged upon reserved matters, WAG would need to take note
and, where necessary, alter the route
accordingly.
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