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Baroness Miller of Chilthorne Domer: My Lords, we are pleased that the Government have placed provisions for local access forums on the face of the Bill. We believed strongly that they were key to making Parts I and II effective. Many other interest groups--landowners, farmers, walkers and those with wildlife interests--are equally pleased that these provisions are now on the face of the Bill and that the Government have made a commitment to fund those forums.
Amendment No. 254 is a probing amendment to test in what circumstances the Government intend to use subsection (8). It would be unfortunate if some areas of the country were not covered by these forums. We wish to examine the criteria used by the Secretary of State when no forum is in place; and the criteria used whereby part of an area which is covered by an access authority has no forum in place. That might apply, for instance, to a large section of MoD land. However, even then it would seem reasonable to have a local access forum which might comment only occasionally as regards that area of land.
Baroness Carnegy of Lour: My Lords, in accepting the idea that local access forums should be statutory, the Government must have calculated the extra cost to the taxpayer. At what cost has the amendment been accepted?
Baroness Byford: My Lords, I, too, thank the Minister for coming back with a full and fairly long clause and for his other amendments, which we welcome. The Liberal Democrats led in this case, but we were happy to support.
Following upon what the noble Baroness, Lady Young of Old Scone, has just said, it is important that our approach is across the board rather than narrow. At earlier stages of the Bill we voiced our concerns that the owners or managers of land might not be included on the access forum, so I am delighted to see that they will be. In Amendment No. 253, the Government have recognised the needs of land managers, which will vary from area to area, and,
The noble Baroness, Lady Miller of Chilthorne Domer, also referred to areas where there will not be local access forums. In Committee we argued that some areas might not want to adopt that approach to start with but would grow towards it. In the meantime, if there are no local access forums in some areas, how do the Government envisage the relationship continuing? I do not think that I have missed the answer to that point in the amendments. I am grateful to the Minister for coming forward with the amendments, but I should like answers to those important questions.
Lord Renton: My Lords, I am glad that the Government have tabled the amendments, as far as they go. Amendment No. 253 seems to be the operative one. Subsection (6) specifies the points that a local access forum shall have regard to in carrying out its functions. The first is,
Lord Whitty: My Lords, I am grateful for the support around the House for the amendments, which address the concerns expressed at earlier stages. In response to the noble Baroness, Lady Carnegy of Lour, I gave some indication of the overall costs of the management of access and rights of way that would probably be incurred with or without forums, but the
Lord Whitty: My Lords, in a sense the answer is yes. Given that there is to be a requirement to have access forums rather than their being one way of dealing with the management and representation of all interests, I guess that the £1 million represents the additional cost. There will be other costs associated with the process, which I have already referred to.
The noble Lord, Lord Renton, asked about Amendment No. 253. Local access forums--I think that we all agree that that is the appropriate plural--will not have executive power, but they will be able to raise any problems that arise with the access authority and the Countryside Agency. That could include specific problems relating to access by night. However, they would not be the decision-making body on that issue.
On Amendment No. 256, we have left the detailed requirements of membership to regulations, but I accept that we need to ensure that the forums are representative of a cross-section of interests and do not end up being polarised between users and landowners. For them to operate properly, other interests will have to be represented. I appreciate that local interests will be particularly relevant in certain areas and circumstances. To put the matter beyond doubt, we shall not leave it to regulations and will accept the amendment as it stands.
On Amendment No. 254, however, we consider that there will be circumstances in which particular authorities will not need to be under a duty to establish a local access forum. Subsection (8) of Amendment No. 253 allows the Secretary of State to exclude them by direction. A specific decision to exclude such areas will be required, not the other way round. There will not be a presumption that there will be no local access forum until one is set up. We have included that provision because there may be some metropolitan boroughs with no open country and very few recreational rights of way. In those areas, it would be an inappropriate use of resources to require the establishment of a local access forum. It will be for ourselves and the Countryside Agency to listen to the views of those authorities. But there will clearly be some urban authorities where rights of way are minimal and access non-existent. If two or more authorities set up a joint forum, it might be appropriate to exclude the operation of the duty from some highly built-up parts of the area. That is unlikely to apply in many areas, but we would need to exclude them on the basis of a direction.
That is precisely why we reduced occupiers' liability to the very low level owed to trespassers. And, further than that, that is why we removed liability in respect of all natural hazards. That represented a fairly fundamental shift in the level of occupiers' liability and was intended to reflect precisely the effect of the new rights. Therefore, we have balanced the new rights with a reduction of liability across the board. In some cases, where there are particular dangers or features which may be beyond the landowner's control, we have excluded liability altogether.
Indeed, on that latter front we intend to go further with these amendments by removing liability. Amendment No. 73 has the effect or removing liability in relation to personal injuries suffered by people who climb over or pass through a wall, fence or gate except by the proper use of a gate or stile. That responds to the concern expressed by landowners that problems were bound to arise with people hurting themselves when climbing over man-made features, such as dry stone walls. We do not believe that the courts would be likely to hold landowners liable in such cases. However, we accept that in this litigious age some people may try to bring cases. Therefore, we wish to extend the exclusion from liability to such occurrences.
Amendment No. 73 deals with liability in respect of rivers, streams, ditches or ponds, whether or not they are natural features. That again addresses conservation interests and concerns expressed by landowners that occupiers should not bear responsibility in relation to such features, even when they have been made or changed by man. In particular, we accept that it would be very difficult to tell whether a pond was man-made or natural.
New subsection (6C) retains a minimal liability where an occupier does something which creates a danger on his land with the intention of creating that risk or is reckless as to whether or not such a risk is created. I am sure that noble Lords will agree that this safeguard is sensible and reasonable, especially now that we have widened the list of items excluded from trespassers' liability to include some man-made ones. In this context, I think of cases where a landowner has deliberately done something to put users of the new right at risk.
Government Amendment No. 77 gives further comfort to landowners in that it provides special guidance to the courts in assessing what, if any, duty remains to be owed by occupiers to those who exercise the right of access. The provision requires the court to have regard to the particular importance of not placing an undue burden, whether financial or otherwise, on the occupier. It also requires the courts to take into account the need to maintain the character of the countryside, including features of historic, traditional or archaeological interest.
We want to make clear that we do not wish the countryside to be littered with forests of signs and miles of fences. Therefore, the landowners' responsibility in that respect must have regard to these wider issues and to any code or guidance. The court must also have regard to any code or guidance issued by the countryside bodies; for example, it must take into account that walkers had been warned by the code to inform themselves about hazards.
I believe that the Government have moved substantially to recognise where the issue of liability could become a serious problem. We have reduced the overall liability; we have excluded liability from areas where unintentional danger could be at its height; and we have given that guidance to the courts. Therefore, I believe that we have gone a long way towards recognising the genuine concerns of landowners in this area.
I shall come to the other amendments in the group shortly. However, I do not believe that we should go further, and I certainly do not believe that we should accept, for example, Amendment No. 74, which effectively would exclude all liability on access land. We have constructed a balance by reducing general liability and have gone further in the landowners' direction. I do not intend to go further than we have done with these amendments. I beg to move.
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