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Lord Marlesford: I am grateful to the noble Lord, and no doubt the Minister will take that into account as well. However, it seems to me that there is a real question to be determined, perhaps not by this amendment or by the Government in legislation, but by the courts, as to whether or not in particular cases people are suffering loss as a result of this legislation. Whether or not the loss can be compensated is in a sense a different point.

There are various routes, which perhaps we do not have time to debate this evening--the noble Lord, Lord Lester, made reference to them--by which that loss may or may not be compensatable. But surely the Government recognise that it is probable there will be various forms of loss, whether it be loss of privacy or economic loss, such as a drop in shooting rates because grouse moors become less hospitable to grouse and more hospitable to the public. That matter must be determined. Therefore, there is a real issue here which it is well worth debating.

Baroness Byford: My Lords, I support my noble friend's amendment. I am a mere country girl among lawyers. I have found it difficult to follow the

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argument of the lawyers, not because their contributions have been unclear but because of its complexity. I do not intend to belittle the contributions of the lawyers.

The amendment clearly provides for compensation for diminution in the value of the land. The noble Lord, Lord Goldsmith, said that he had attended some but, sadly, not all of the debates on this matter. The Government have accepted some of our concerns along the way to try to guard against the extra costs which will fall on farmers, farm managers and owners. The truth of the matter is that a right is to be taken away. The noble Lord, Lord Goldsmith, who spoke eloquently, said that this measure would give benefits to millions of people, which we all welcome. We do not deny that. However, that will take away somebody else's enjoyment, rights or however one expresses the interest. This amendment is a modest one. I am surprised that the Government are unwilling to consider the amendment in greater depth than in the past if they do not believe that the decrease in the value of the land will be great.

I should like to wear my rural hat. I am sure that all noble Lords are aware--some are much closer to the coalface--that in this country farming is still in crisis and continues to go through difficult times. As a result, farm incomes have fallen. Some of these people are not big landowners, but the problems are the same. Those who listened to earlier debates heard the Minister accept that, while the Government would help on the question of liability, landowners or managers would still face costs because of extra liability. In an earlier debate the noble Lord, Lord Northbourne, who is not in his place at the moment, recognised that greater access to the land would result in sheep worrying, which also has an effect on the income of those who live on the land. My noble friend Lord Marlesford referred to the fact that at the moment people were free to use and enjoy their land as they wished.

The noble Lord, Lord Goldsmith, referred, perhaps unintentionally, to a special class of people. I do not regard tenant farmers, farm owners and landowners as a special class of people. However, as the Bill will have an impact upon them I regard them as a minority class. The Bill will enable millions of people to enjoy the land. We do not disagree with that. However, noble Lords who have put the legal argument should perhaps hear people like me, with much less legal ability, put the other side and say why they firmly believe that there will be a lessening in value. I support the amendment moved so ably by my noble friend.

Lord Whitty: My Lords, like the noble Baroness, it ill behoves me to be caught in the crossfire between lawyers. I attempted to counter the argument of the noble Lord, Lord Brittan, at an earlier stage. I am now quite prepared to accept that both my noble friend Lord Goldsmith and the noble Lord, Lord Lester, have done it far more effectively than me. They do not appear to have convinced the noble Baroness of the

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rightness of my argument last time. Nevertheless, it is clear that those expert lawyers on human rights issues recognise that argument.

The Government are absolutely committed to observing the tenets of the European Convention on Human Rights and remain confident that the provisions and the regime of the Bill are completely compatible with them, including that part which relates to restrictions on the control of one's property. At one point the noble Lord, Lord Kingsland, made an allegation about expropriation, but I believe everybody recognises that he was slightly off the mark. We are referring here to restrictions on control. In that context, under the European convention what matters is proportion, balance and discrimination or otherwise.

The case of Chassagnou which the noble Lord, Lord Kingsland, and his noble friend Lord Brittan cited, was clearly decided on the basis of disproportion and discrimination between different types of landowner. In this case there is neither disproportion nor discrimination. So far as concerns disproportion, we have constructed a regime under which, in order to balance the requirement to provide access to the land, we have reduced liability on that land. We have excluded entirely from liability whole aspects of the management of the land. We have protected the ability of the landowner to use that land in whatever way he wishes for economic or other purposes. We have also provided a flexible regime in terms of restrictions by the landowner, either directly within his own discretion or by application, on the way in which right of access is provided.

When one comes to consider balance, clearly in certain circumstances monetary compensation may arise, but where we have provided compensation in other forms we have already met the requirements of the European convention. As we have proceeded we have probably come closer to agreement as to balance. We have throughout sought balance, and we believe that the Bill as amended by your Lordships provides precisely that balance.

I turn to the point raised by the noble Lord, Lord Renton, relating to discrimination and the National Parks and Access to the Countryside Act. There was discrimination between landowners in national park areas and those outside, and between landowners within national parks to whom orders were applied and landowners in those parks to whom no orders were applied. Here there is no discrimination between one owner of a grouse moor and another, one owner of heath land and another, or one owner of down land and another; they are all treated the same in England and Wales under the Bill. Therefore, neither on the ground of disproportion nor on the ground of discrimination does the Bill offend against the central tenets of the European Convention on Human Rights.

Some noble Lords opposite and those who purport to represent landowners want to have their cake and eat it. They want balance in the sense of reduced liability, a flexible regime, compensation and, on top of that, the abolition of all liability. That is not

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balance. What we have in the Bill now is a balance of human rights in relation to both the landowner and the thousands of people who will have a greater human right because of their ability to enjoy the countryside.

I hope that, with the backing of distinguished lawyers, the noble Baroness, Lady Byford, the noble Lord, Lord Kingsland, and even (in his absence) the noble Lord, Lord Brittan, are now convinced that the noble Lord is wrong and the Bill is in full compliance with all the provisions of the convention. Therefore, I hope the noble Lord will not pursue his amendment.

Lord Kingsland: My Lords, I thank your Lordships for a stimulating and apposite debate with respect to the amendment. Perhaps I may say to the noble Lord, Lord Goldsmith, that it was certainly not my intention to conflate or elide the two parts of Article 1 of the First Protocol. I believe I said in my opening remarks that, by regarding the position of a right of way as analogous to a right of access, a right of access became an uncompensated encumbrance on the land and therefore an expropriation.

I take the point made by the noble Lord, Lord Goldsmith, that he does not accept the analogy. But if the noble Lord is incorrect and I am correct and the analogy is accurate, then it is appropriate to submit to your Lordships that an encumbrance is an act of expropriation.

I turn to the second arm, which is the issue of control. It is always an education to listen to the noble Lord, Lord Lester, on the subject of the European Convention on Human Rights. Tonight was no exception. I take some comfort from what the noble Lord said about those circumstances--though rare, he added--when compensation might be paid. I thought I heard the Minister accept that such circumstances in particular cases might arise. If that is so, then surely, a fortiori, the Government should be providing a mechanism for such circumstances.

At earlier stages of the Bill my noble friend Lord Brittan accepted that someone seeking compensation would have to prove his case; he would have to prove real economic damage. So what would be the harm if the Minister inserted into the Bill, even at this late stage, a mechanism for making applications for compensation in those circumstances?

The noble Lord looks at me stonily. I suspect--

Lord Whitty: My Lords, the noble Lord may have misinterpreted me. I said that one could conceive of situations where compensation was part of the balancing. In this case we have provided balance in other ways. Therefore, a general provision for compensation is not appropriate.

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