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Viscount Bledisloe: My Lords, the noble Lord, Lord Brittan, has drawn attention to the fact that the noble Lord, Lord Renton, and the noble and learned Lord, Lord Brightman, have added their names to the amendment. In view of the hour and the fact that neither of those noble Lords is still quite in the first flush of youth, their absence is perhaps not surprising, quite apart from any ill-health. But the House and, with respect, the Government cannot ignore the fact that two noble Lords of that experience, of that knowledge of the law, and so forth, have thought it appropriate to add their names to the amendment whereas they have not taken part generally in the Bill. Surely, that must give the Government serious cause for thought that the amendment is necessary as a matter to satisfy the requirements of the law.

Perhaps I may add two other points. First, surely the need for compensation is extenuated by the fact that the Government decline to give any form of indemnification to persons who incur loss and expense. They recognise that people will incur loss and expense. But if they do not get that money back, that must mean that there is a diminution in the value of the land.

As to discrimination, it is not an answer to say that this affects all landowners equally and, therefore, there is no need for compensation. If the Government said that "everyone who owns a house shall give it up to squatters", I cannot believe that they could say also, "and we do not have to compensate you because that applies to all house owners". But of course this is discriminatory even as between landowners. It applies only to those landowners who happen to own land of this kind. Other landowners who do not own land of this kind do not suffer the same diminution in the value of the land. Surely, as the noble Lord, Lord Brittan, said, the Government do not want this elaborate

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legislation to run into the sands, in the light of the argument advanced by the noble Lord, of a very worrying human rights challenge. It would be better to accept that where after five years it is apparent that someone has genuinely suffered diminution in the value of the land he should be compensated for it. Of course, as the noble Lord says, some people may not suffer. They may benefit because they can open attractions.

12.30 a.m.

Baroness Hamwee: My Lords, I accept that the precondition set out in the amendment is the proof of loss of value. Indeed, the noble Lord, Lord Brittan, described that as being measurable; he said, "if it is measurable".

I am not sure whether the noble Lord is using the 1949 Act as a model or as a precedent. I do not entirely go along with the noble Viscount, Lord Bledisloe, with regard to whether or not that was discriminatory and this legislation is not. I believe that there is a difference. However, as I understand the position, the convention and now our own legislation are not violated if the state imposes control which is in the public interest or enforces law in the public interest as the state judges that to be. It is required that a fair balance is applied. The state is the appropriate authority to determine the compensation, if any compensation, as long as it has regard to that balance. The House has been assured by the Minister that it has had regard to that balance; no doubt, that is on the basis of advice from the Law Officers.

I hesitate to tangle with the eminent lawyers who have spoken to and put their names to the amendment, but it seems to us that it is for the state to take a view as to the process to be applied and then it is for the courts to assess whether the convention and the Human Rights Act have been complied with. I am a little concerned that we in this House may be confusing the roles of the legislature and the courts in attempting to assess the outcome of this process.

Baroness Byford: My Lords, I rise to support my noble friend's very well put case for Amendment No. 145. We touched on human rights during earlier proceedings on the Bill and the Government said confidently that human rights provisions will not apply in the way that my noble friend thinks they will. With that in mind, I should like to ask some questions of the Minister. First, have the Government sought up-to-date legal advice on the whole position of human rights, bearing in mind the way in which my noble friend has explained the position? If so, has that altered the view that they held before such advice was sought?

Secondly, my noble friend pointed out that compensation "may" be given. That is not good enough. Why should that be the case? The landowner or property owner could find himself in a position which he would not otherwise be in, where the land that he owns has diminished in value as a result of these access provisions in which he has had no say. It is the Government's wish that these access provisions should

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come into existence and we do not object to that. But surely it is right that where legislation affects the value of the land compensation should be given. We are talking here both about the right of access and people's rights as property holders and land managers.

My noble friend expressed the hope that the legislation will result in more people wanting to make use of the countryside, although it has also been suggested that the same people will simply make more visits to more sites. I hope that the legislation will encourage people to enjoy the countryside. But with that will come additional difficulties and perhaps a loss of value of the land to the landowner.

My noble friend expressed his case very eloquently. I shall not repeat the points that he made. But I ask the Minister to state what views the Government held on this matter at the time of Second Reading and whether their views have changed. If their views have not changed, I ask that between now and Third Reading they seek up-to-date advice on the whole question of human rights legislation and how it affects the Bill.

Lord Whitty: My Lords, I have been asked to give a straight answer to the question put to me by the noble Baroness. I have not changed my mind. I do not think that compensation is appropriate in this area. I am constantly amazed at the different areas in which some members of the legal profession seek to cite the Human Rights Act and thus the convention. I do not believe that it is relevant to the position here, but even if that was not the case, I shall demonstrate shortly that it would not be appropriate and that the advice--which we continue to keep under review--has not changed; namely, that the provisions of the Human Rights Act would not appropriately lead to compensation as sought by the noble Lord.

However, before I turn to the Human Rights Act and the European Convention on Human Rights, I shall deal with the current provisions in English law which the noble Lord has cited as precedents. In particular, whether as a precedent or as a model, the noble Lord has referred to the National Parks and Access to the Countryside Act 1949. He dismissed my main point as regards that Act. However, the reason why--unusually--compensation was provided in the 1949 Act was that it related to land of a particular kind. Discrimination was made between one landowner and another as regards what would be included within a national park. That is not the case here. The right of access will apply to all mountain, moor, heath, down and common land. No discrimination will be made and therefore no prima facie right to compensation will exist in relation to the value of such land.

The more general position in English law has been that no compensation has been paid. The Law of Property Act 1925, which gave the right of access on foot and on horseback to large areas of common land, did not make any general provision for compensation. If that is too ancient a precedent for noble Lords, then I shall cite the Dartmoor Commons Act 1985, an Act

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passed when the noble Lord, Lord Brittan, was a leading member of the government. That Act also did not provide for compensation.

I do not believe that the comparison with rights of way is valid. Noble Lords have suggested that, because compensation is payable on rights of way, it should be payable on rights of access. I believe that the noble Lord said that this is only a "generalised right of way". However, the balance here is quite different. Landowners with rights of way are subject to a large number of obligations. For instance, if they are ploughing up a field, they must restore a right of way and keep it clear of crops. As regards access land, there is no such obligation. At any time, owners can change the nature of the land by ploughing it up, planting it or undertaking any other operation on it. In many such cases, that of itself would mean that the right of access would cease. It would no longer be access land because it would not be open country.

Another difference is that, for open countryside, we have allowed for a generous closure regime; even after the amendments that we are proposing to Part II of the Bill, the possibilities for landowners and managers to close rights of way will be extremely limited. No analogy exists in relation to rights of way.

In relation to the ECHR and the Human Rights Act, now enshrined in English law, I think that it is important for me to put on the record certain points I made at earlier stages. The noble Lord, Lord Brittan, indicated that the right of property is not absolute in the convention. Indeed, I would argue that it is not even necessarily paramount. However, Article 1 of the First Protocol refers to the peaceful enjoyment of possessions and goes on to say that no one should be deprived of their possessions except in the public interest and subject to conditions provided for by law. It also states that:

    "The preceding provisions shall not ... 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".

It is self-evident that we do not consider that the right of access is the taking of property. It does not, therefore, fall under the earlier provision. If we were nationalising or taking over land for some other purpose, then the matter would be brought under the first provision. Indeed, the noble Lord cited the Lithgow case, which I remember well as I was the author of the original Labour Party policy which called for the nationalisation of the shipbuilding industry. That case dealt with the deprivation of ownership by means of nationalisation. It therefore fell under the provision relating to the taking of land. This provision relates to the control of the use of property, not to the taking of the use of property.

As the noble Lord is no doubt aware, it is fairly well established that where the taking of property is concerned--except in very exceptional circumstances--compensation is provided. But compensation is not necessarily required to achieve the balance between the public interest and the protection of private property that is required in the Bill in respect of control over the use of property. In this context we

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are talking about control over the use of property--namely, the requirement to provide access--and, provided that there is a fair balance in other respects, there is no requirement for compensation in that area.

We have had regard to a number of leading cases, including, for example, Baner v. Sweden, in which it was established that, where there is a control of property, there is no presumption of compensation. There are a number of other such cases which refine and clarify the law in that respect. The noble Baroness would not expect me--even less would the noble Lord, Lord Brittan, expect me--to breach the normal convention that we do not disclose the advice from Law Officers. Nevertheless, even from general legal reading, it is clear that my position can be sustained in relation to control of property. We are on fairly substantial legal ground in saying that, where a fair balance is established by other means, compensation is not appropriate.

Much of the debate has been about the nature of that balance. Some noble Lords consider that the balance is not fair. But perhaps even they would concede that it is somewhat fairer than when the Bill first came to the House because, by and large, we have made amendments which move in the direction of the landowner. Nevertheless, they still query whether we have reached a fair balance.

In all of this we have been talking about balance. We believe that we have reached a fair balance as a result of a number of amendments, proposed originally by noble Lords and introduced, by and large, by the Government. Except in exceptional circumstances, that balance does not require an additional right of compensation.

Because of the concerns expressed about the effects on landowners, we have accepted a significant number of changes and we have pledged that there will be adequate funding to manage access properly. We understand that there remain anxieties, but as many landowners will benefit as will be detrimentally affected, as they would see it, by the provisions of the Bill. It is not sensible that we should provide a general compensation clause in the way suggested by the noble Lord's amendment.

It is important that there is an appropriate balance between the public interest of walkers and the population at large, and the interests of landowners. We believe that we have reached that balance--or are in the process of reaching it--and that the issue of compensation is not therefore relevant. English law precedent suggests that it is not the normal situation in any case, and I believe that I have shown that, under the European Convention on Human Rights, the balance of cases are on my side rather than on the side of the noble Lord. I hope that he will not pursue his amendment.

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