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Lord Marlesford: My Lords, perhaps I may speak briefly in support of Amendment No. 36 and draw an analogy. Some years ago it became apparent that in cases of real urgency the Secretary of State should be able to make immediate listed building orders. There was a period when developers used to destroy buildings overnight, before appropriate action could be taken to list them, in order to prevent that happening. This provision strikes me as similar. I believe that the noble Lord is trying to make sure that the wheels do not grind too slowly in dealing with these matters.

Baroness Byford: My Lords, I, too, should like to thank the Minister for introducing these amendments, which we put forward at an early stage in Committee and which were debated during the course of the Bill. Perhaps the Minister will enlarge slightly on his Amendment No. 2--which we are happy to accept. We are slightly concerned about the word "appears" in the reference:

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I should have thought that grassland either is, or is not, improved or semi-improved grassland. I do not know why that framework has been included. Secondly, will this matter be decided centrally, or will the interpretation vary in different parts of the country?

Lord Whitty: My Lords, on the noble Baroness's final point and on the queries regarding the inclusion of the word "appears", clearly the approach will be national, but a degree of judgment may well be required in marginal cases. That is why, consistent with other pieces of legislation, we have used the term "appear". We are talking about "improved or semi-improved" grassland, but there will be some semi-natural grassland which is essentially unimproved. It is grassland which, theoretically, might be able to produce a crop of hay but would not be included in this definition. There are marginal areas on which the countryside authorities will have to make a judgment. That is why the word "appears" appears.

As regards the question asked by the noble Earl, Lord Peel, and the noble Lord, Lord Monro, land which is improved or semi-improved will be excluded from the scope of the definition of mountain, moor, heath and down; so we should not generally expect such land to be mapped. That is why I said that this provision would benefit the mapping process, as well as ultimately being of benefit in terms of clarity to walkers and landowners.

On the question of buildings, the noble Lord, Lord Jopling, has misinterpreted the intention of the provision. The intention is to include buildings that are used to house livestock in the same way as other exceptions are written into the Bill--enclosures, pens, etc--when they are in use. We are not, therefore, excepting all buildings which might potentially at some point be used for livestock.

I may have slightly misled the House during my remarks on Amendment No. 37. I said then that the exception would be where access was near dwellings. But, in fact, dwellings remain protected. It is when access would otherwise be prevented by the 20 metre penumbra in relation to livestock that that exception is provided.

Perhaps I may turn now to the amendment tabled in the name of my noble friend Lord Hardy, Amendment No. 36, which was also spoken to by the noble Lord, Lord Marlesford. It would be very difficult to refer temporary exemptions to any authority. There are many areas that have urgent, temporary, "over-the-weekend" kind of exemptions. Moreover, plenty of areas already have nature conservancy areas on access land, and on non-access land, where sensible precautions can be taken without changing the legal position.

Where there is a problem, we believe that the owners of such sites can, if necessary, seek a direction under Clause 26 from the relevant authority for the conservation of wildlife in that particular area. In considering whether to give a direction, the relevant authority must have regard to advice provided by the

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relevant advisory body. Therefore, it is not a question of whether or not English Nature will be the advisory body; it will be a question of whether the relevant access authority is accessible at that time. We cannot cover all such contingencies. There is a whole experience of managing nature sites on what will now become access land, and elsewhere. I do not believe that we need the amendment of my noble friend Lord Hardy. I trust that he is reassured that Clause 26 will adequately cover the situation in almost all circumstances. I hope, therefore, that he will not press his amendment.

On Question, amendment agreed to.

Lord Whitty moved Amendment No. 2:

    Page 2, line 14, at end insert--

(""mountain, moor, heath or down" does not include land which appears to the appropriate countryside body to consist of improved or semi-improved grassland;").

On Question, amendment agreed to.

4 p.m.

Clause 2 [Rights of public in relation to access land]:

Earl Peel moved Amendment No. 3:

    Page 3, line 15, at end insert--

("( ) Where on any day a person fails to comply with Schedule 2 or any restriction imposed under Chapter II, and, having been advised by the owner or by a person acting on his authority on two or more different occasions on the same day, on land in the same ownership, of the effect of that failure to comply, he again fails on the same day, on land in the same ownership, to comply with Schedule 2 or any restriction imposed under Chapter II, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 1 on the standard scale.").

The noble Earl said: My Lords, in moving this amendment I return to a subject that has been a sticking point throughout our deliberations on the Bill. It is the question of introducing a criminal sanction against those who persistently ignore regulations and restrictions under Schedule 2 and Chapter II of the Bill. Many of us feel that the Bill as it stands is inadequate in this respect, as an owner or an occupier would have recourse to the civil courts only against someone who, out of sheer bloody-mindedness, failed to comply with the request available under the Bill to leave that land for 72 hours because he had contravened Schedule 2 or Chapter II.

I appreciate that the Government have always resisted such a suggestion for fear of criminalising trespass. However, I suggest that the access provided in the Bill presents an entirely different situation. As I understand it, to commit trespass a person has to enter land over which he has no right to pass. But this Bill creates a new right of access over 4 million acres of land and, therefore, the general public have a right of access on that land under the legislation. It is only by repeatedly ignoring or resisting the restrictions and regulations under Schedule 2 and Chapter II that an offence is committed. It is not, therefore, the act of trespass as such that is an offence. As I say, this is a very different situation.

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We need to remember also that the Bill contains criminal sanctions against owners and occupiers who impede access. I have no problems with that, but I think it essential--and only equitable therefore--that such a sanction should be available to the owner/occupier against those who persistently abuse these new rights and responsibilities. My amendment is very tightly drawn and would only establish a criminal sanction when someone failed to comply on three occasions, on the same day, and on land in the same ownership. Further, the sanction would be set at the minimum level with a fine not exceeding £200.

I suggest that this is not an unreasonable measure to be available to those who wish to protect the management of their land against the very few--I acknowledge that it will only be a small number of people--who may blatantly abuse the new rights and responsibilities afforded to them under this legislation. I beg to move.

Baroness Carnegy of Lour: My Lords, I support this important amendment. None of us wants confrontation on the ground between people who are roaming and those who own or occupy the land. Our great fear about the Bill is that that will happen; it would be tragic. It seems to me that someone, not necessarily the occupier, who has been given instructions to advise a person that he should leave the land--for example, a gamekeeper, or some other employee of the owner or occupier--might well lose his temper when a person has persistently trespassed on the land after being warned about the sanctions and told that he should not do so. It would be extremely maddening, and could well cause trouble. The amendment suggests a very reasonable way to solve the problem. I hope that the Minister will consider it.

Lord Monson: My Lords, I, too, support this modest but vital amendment, as well as the other two amendments in the group to which I have not added my name. The maximum penalty proposed is as low as it reasonably could be without being virtually ineffective. As the noble Earl, Lord Peel, said, the amendment would not criminalise trespass as such. We do not want that to happen as far as concerns accidental trespass, and the Government certainly do not want it.

However, it is worth reminding ourselves that Sections 68 to 71 inclusive of the Criminal Justice and Public Order Act 1994, to which, I believe, the Government have no objection, do criminalise certain types of trespass and impose maximum fines at either level 3 or level 4, depending on the offence. Those fines are very much higher than the maximum fine proposed in this amendment. There really must be some small sanction to prevent abuse.

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