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Lord Brittan of Spennithorne: I, too, warmly welcome the proposed new clause. It seeks to clarify the central purpose of the legislation which would otherwise be lacking--and to some extent succeeds. However, one aspect of the purpose of the legislation is not covered by the new clause and it is necessary that it should be before we proceed further. I refer to the fact that the legislation must maintain a fair and proper balance between the rights of walkers and the owners of property if it is not to fall foul of the European Convention on Human Rights. One of the purposes of the Bill should be to ensure that that is done.

In my speech at Second Reading I referred to serious doubts about the compatibility of the Bill as it stands with the convention. If those doubts are justified there is a fundamental flaw in the Bill. However, that flaw is capable of rectification. It is necessary to consider that matter now--not to torpedo the Bill but to get it right. As I said at Second Reading, it would be an irony if the right to roam legislation was itself one of the first pieces of new legislation to fall foul of the European Convention on Human Rights, which automatically becomes part of the law of this country next week.

There are three reasons why the legislation in its present form is probably in breach of the convention. First and most important, it provides a right of access without compensation. I believe that that is a breach of Article 1 of the convention which states:

It was conceded by Mr Meacher on 18th April in another place that this legislation infringed property rights. It is also right to say that property rights are not inviolable or absolute, as is reflected in the second paragraph of Article 1:

    "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties".

In the jurisprudence of the European Court of Human Rights Article 1 has been interpreted as a requirement that in any legislation which deprives people of their property rights there should be a fair balance between the demands of the general community and the requirements of their fundamental rights. In the case of this legislation I suggest that in

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order to determine whether there is a balance one of the most important requirements is to look at the nature of the breach of property rights that is inevitably contained within the legislation and see whether compensation is provided. It is no use saying that compensation is provided if the grant of such compensation is wholly discretionary and depends on the judgment of a public authority rather than a legal right that is enforceable in a court of law.

In the debates in another place and at Second Reading in this House ample evidence was provided of damage to property rights that would be caused by the legislation. First, anyone who is responsible will be required to provide warnings of hazards on land which has not previously been open to the public. Secondly, there is no doubt that the proper implementation of the legislation will require extra fencing, which is another cost. As the Minister admitted in this House, the extra insurance required is an undoubted further cost. There will also be greater maintenance costs incurred as a result of many more people entering land that is in private ownership than has previously been the case.

All of this can be dismissed by the other side as de minimis, but that does not cut much ice. If there is not a substantial further entry onto private land compared with what happens now on public rights of way, frankly there is no point in the legislation. The Bill is designed to ensure substantial further access. Therefore, greater maintenance costs and the other expenses to which I have referred will undoubtedly be incurred.

As has been said so often by the Government Front Bench--it has been repeated rather like a mantra--even if there is no extra legal liability, that has no relevance. It is one thing to say that the formal legal liability is not increased, but if a hugely increased number of people trample over land there can be no question about the much greater cost of complying with the legal liability which may not be formally greater. There is also the potential loss of value of land about which there has been a good deal of argument. I do not believe that anyone can responsibly dismiss that as an irrelevant fact.

We have a situation in which there is a diminution in property rights and the possibility of substantial extra costs being incurred. The question of compensation arises in determining whether the good granted to the general public by the right of access outweighs the diminution of property rights which necessarily flows from this legislation.

It was said in the recent case of Lithgow v United Kingdom:

    "Compensation terms are material to the assessment of whether a fair balance has been struck between the various interests at stake and, notably, whether a disproportionate burden has been imposed on the person deprived of his possessions".

Clearly, in looking at that balance it is highly relevant to ask whether there has been compensation. In looking at balance, it is also appropriate to consider not merely the possible grant of compensation but whether there has been an historic precedent for it in this country long before the European convention

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gained the force of law. One had the famous statement of Lord Silkin on the passage of the 1949 Act and the Act itself which provided for compensation. It is no use saying, as Ministers have said in previous debates, that Conservative or Labour governments--it matters not which--have produced legislation that has not granted compensation. The relevance of it is that, now we have the European Convention on Human Rights, these matters must be looked at in a consistent and fair way.

If the Government are to provide an honest and fair certificate of compliance with the European convention, the question is how the balance between the deprivation of property rights and the interests of the general public is to be interpreted by the European Court of Human Rights in Strasbourg. To help us assess that question we have the precedent of the Chassagnou case. That is an ironic precedent in that hunters were allowed by statute to go onto people's land against their wishes. That was a curious piece of legislation, to say the least. It was held that, even though compensation was granted to those who might have lost property rights as a result, that was not sufficient to avoid the finding of a breach of the convention. I quote from the judgment in that case:

    "In the present case the applicants do not wish to hunt on their land and object to the fact that others may come onto their land to hunt. However, although opposed to hunting on ethical grounds, they are obliged to tolerate the presence of armed men and gun dogs on their land every year. This restriction on the free exercise of the right of use undoubtedly constitutes an interference with the applicants' enjoyment of their rights as the owners of property. Accordingly, the second paragraph of Article 1 is applicable in the case".

It is ironic that the particular case that I cite should be of that character, but the principle is the same. It is clear that the Court found that the granting of rights to people on other people's land amounted to a breach of the convention. It is also relevant to show that if discretionary compensation is provided that is not sufficient to provide a proper balance to the grant of the right to go on to other people's land for whatever purpose, whether it be to walk or whether it be to hunt, because later in the judgment it states:

    "As to the assertion that it was open to the applicants to ask for their land to be included in a game reserve or nature reserve"--

which is comparable to some of the provisions in the present legislation--

    "the Court notes that neither the ACCAs, nor the Minister nor the prefect are required to grant such requests from private individuals, as shown by the refusals of the applicants' requests in the present case".

From that it becomes clear that the provision of compensation on a discretionary basis is not sufficient to prevent the Act biting. I suggest that there is a powerful case that the grant of a right to roam without legal compensation would be held to be in breach of the European Convention on Human Rights which is about to become part of the law of this country.

But there is a second reason to think that that might be the case. That relates to the mapping provisions. They are of course crucial as they determine the land to which the rights apply. Maps are to be produced in

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provisional form and landowners have a right of appeal against the designation of land as open country. But there is no requirement that there should be notification that their land is being included. There is only a general notice and people have to look at that general notice before knowing whether their land is included. I think that it is highly arguable that the absence of a notification provision is a breach of Article 6 of the convention. A right of appeal is only capable of being exercised--as the convention requires it to be permitted to be exercised--if the person knows that circumstances have arisen which affect him and might give rise to a right of appeal.

Thirdly, I believe that the Bill in its present form is in breach of the requirements of the convention that the determination of one's rights should be by an independent and impartial tribunal. Here the appeal is to the Secretary of State against a decision of a government agency. An important case has been decided on this very point since our last debate on 25th July. That is Country Properties Ltd v Scottish Ministers.

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