Lord Whitty: On the noble Earl's first point, in essence I can offer reassurance. The process of mapping will mean that the position is somewhat different where there is a clear contour definition of the area. I said that the ability to put in for restrictions, closures, exceptions and so on and the whole structure of appeal would be the same as for the end of the mapping process in other areas and that that process would be completed before the right was triggered.
On the question of access points and access where there is not a right of way to the land at the moment, we are about to come on to amendments which deal with precisely those points.
Lord Jopling: Before the Minister sits down, I wonder whether he would clarify a matter which arises under paragraph (c) and is also referred to at the end of the clause. The clause states:
"'registered common land' means land which is registered as common land under the Commons Registration Act 1965".
I vividly recall the passing of that Act all those years ago because the Committee in another place which considered the Bill was the first one on which I served. I remember it extremely well. To what extent are there still pieces of land which were originally registered under the Commons Registration Act 1965 within the first time period and which then had to be argued about in the years following? Are there still matters in dispute which have not yet been settled with regard to registering common land under the 1965 Act? That is a rather important point in considering the Bill because when we talk about registered common land we really ought to know whether everything has been tidied up in commons' registration. Indeed, the original intention was, first, to register common land--where it was, who owned it, who had what rights on it--and then to move on as a second stage to having management agreements.
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I have spoken for long enough. I see that the Minister has received a note. I hope that he will be able to tell us the position with regard to land which was registered but the legal position of which has not been clarified.
Lord Whitty: I touched on that point at an earlier stage. I am not sure whether the noble Lord was present at that point. The Commons Registration Act 1965 led to the registration of common land. The criticisms which have come relate to areas which have been registered where people are still arguing as to whether it should be registered. As far as concerns this Bill, if they have already been registered, they are covered by the Bill's provisions even though there may be some argument. There is no legal right of further argument in that respect. With regard to areas where there are still legal disputes, those legal disputes relate not so much to the designation of the land as to the common rights over the land. Particular disputes are still outstanding in that respect in relation to areas in south Wales. There are then those areas which should have been registered. They would not be covered by the Bill. In other words, we are having to take the register, warts and all. There are not that many outstanding legal disputes, certainly not on the designation of such land.
The Government have recently issued a consultation document on the future management of common land and greater protection for common land. There are therefore proposals for reform in the pipeline. However, the Bill does not cover that. For the purposes of the Bill, it is the land that is already registered.
Earl Peel: I was trying to get an answer on the question of footpaths and access points. Perhaps the Minister will deal with that.
Lord Whitty: My point on that is that we are about to come on to a group of amendments which deals with those matters.
Earl Peel: My decision on how I play this amendment will depend on the answer I receive from the Minister.
Lord Whitty: If we unravel the grouping, we will not get very far tonight. The noble Earl is concerned about islands of land.
Earl Peel: I am talking specifically about fast-track land--registered common land and land above 600 metres--and whether it will be dealt with in the same way and be afforded the same rights as land that will be dealt with through the normal procedures.
Lord Whitty: The land will be dealt with in the same way. As I have just explained, in terms of fast-tracked, over 600 metres land, the right of people to suggest restrictions, closures, modifications and so on will be exactly the same. Whether the outcome of those negotiations or agreements would cover every aspect
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of access to that land would depend on how those negotiations went. I could not give an absolute assurance that the question of access to islands of mountain land would necessarily be resolved. But if they were addressed by people with an interest in that land, we have a process which is capable of resolving them.
Earl Peel: I am grateful to the Minister. We are going around in circles on this point. I shall read carefully what the Minister has said. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 to 12 not moved.]
Lord Glentoran moved Amendment No. 13:
Page 1, line 17, after ("level") insert ("and which is accessible to the public by any highway").
The noble Lord said: I am not quite sure why Amendment No. 13 is in this grouping as it deals with matters which in part have already been addressed. It would be helpful if the Minister could see his way to accepting the amendment. At the moment the Bill provides that any land more than 600 metres above sea level will automatically become access land subject to the right of access. There is no prior requirement, as there is for other access land, for such land to be mapped by the Countryside Agency or the Countryside Council for Wales before that right comes into effect. That raises the prospect that once the Bill becomes law people will seek to gain access to mountain tops across intervening land over which no right of access exists.
The amendment refers to land over 600 metres above sea level,
"which is accessible to the public by any highway".
I interpret "highway" as being any route that is open and accessible legally to the public. If that were acceptable, it would certainly make us feel a good deal more comfortable about the areas of mountains over 600 metres and would avoid the business of having to go through inaccessible land and the pressures of the public wanting to have access to mountain tops to which there is no right of access. So if we put on to mountain land--that is, land over 600 metres--the proviso,
"which is accessible to the public by any highway",
that would, I believe, be helpful.
Amendment No. 16 concerns the definition of "down":
""down" means only that downland which occurs on a chalk substrate and which is found south of the line of latitude 53 degrees north".
I shall explain the amendment. In the minds of most people, the term "down" conjures up a vision of the open chalk grasslands of the South Downs, the Marlborough Downs or the North Downs of Kent. That is the kind of land most people would expect to find mapped as "downland" for the purposes of rights of access under the Bill. However, in geological terms, it can be argued that grasslands on limestone substrates should also be considered as downland.
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This would bring within the scope of the Bill the grasslands of the Cotswolds or the Yorkshire Dales, which are of a quite different character. Greater clarity is needed about precisely what types of land should be mapped as "down" for the purposes of the Bill.
The amendment suggests one approach. It would focus the mapping on areas of chalk grassland south of the line of latitude 53 degrees north--roughly from Wrexham through Stoke-on-Trent and then to Boston in the east. Areas of grassland or limestone substrates north of that line would be excluded unless they also qualified as "moor" or "heath".
Whichever approach is adopted, it is important that all interests are aware of the criteria. That brings us back to the argument about identifying areas of downland. Can the Minister indicate what ecological, landscape or other criteria the Government plan to use for identifying areas of downland? For the purposes of the Bill, what is the definition of down? The definition we recommend is the geological definition which, I understand, is perfectly reputable and correct.
As regards Amendment No. 17, which states that,
""land" does not include land predominantly covered by water";
the access provisions are concerned with rights of access on foot. Schedule 2 prevents the use of vessels or sailboards on non-tidal water and also prevents bathing. The issues surrounding rights of navigation should be considered separately. This amendment seeks to exclude from the access regime land covered by water. The inclusion of the word "predominantly" prevents any suggestion that mountain streams which can be crossed easily should be excluded from access land. The amendment seeks only to exclude inland lakes of one kind or another.
Amendment No. 27 seeks further to probe the Government's definition of downland. Amendment No. 33 will be spoken to by my noble friend Lord Caithness. I beg to move.
The Earl of Caithness: It may be convenient to the Committee if I did not speak to Amendment No. 33 at this point, but rather degrouped it. It concerns a totally different subject from that addressed by Amendment No. 13.