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Lord Greaves: I thank the Minister for that full response. This was a probing amendment to put on record the information about how the provision will work. From that point of view, it has been helpful.
There is no doubt that the system as seen by the stakeholder working group now has a gap in it because of the lack of advisory bodies. It may well be that they are not necessary and that they would exist and meet only for the sake of it. When the legislation is enacted, we will watch carefully to see how it works in practice. On the basis of the Minister's helpful reply, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Livsey of Talgarth moved Amendment No. 252:
"'right of access' means a right of access as defined by section 2 of and Schedule 2 to the Countryside and Rights of Way Act 2000 (c. 37);"
The noble Lord said: It is my privilege to propose the last amendment. I have degrouped the amendment because it is particularly important. On page 28, line 6, there are a number of interpretations of phrases and words relating to the Bill. The amendment inserts into that list the interpretation of "right of access". The amendment states:
"'right of access' means a right of access as defined by section 2 of and Schedule 2 to the Countryside and Rights of Way Act 2000".
The purpose of the amendment is to get an agreed definition of "right of access", as appears in previous similar legislation which is respected.
Section 2 of the CROW Act states:
"Any person is entitled by virtue of this subsection to enter and remain on any access land for the purposes of open-air recreation".
A number of conditions are rightly imposed:
(b) he observes the general restrictions in Schedule 2 and any other restrictions imposed in relation to the land under Chapter II",
In Schedule 2, one comes across a number of desirable conditions; for example, the ability to manage agricultural land. Sub-paragraph (n) states:
"without reasonable excuse, interfere with any fence, barrier or other device designed to prevent accidents to people or to enclosed livestock".
"neglects to shut any gate or to fasten it where any means of doing so is provided, except where it is reasonable to assume that a gate is intended to be left open".
It is full of such conditions.
The Committee will be glad to hear that in all my recent discussions with representatives of the commons associations, the NFU and the Farmers Union of Wales this definition was respected—indeed, in some cases, one or two dissidents have come to terms with Section 2 and Schedule 2 to the CROW Act 2000 as being a sensible piece of legislation—and, in relation to access, they want the same definition to be applied to the Commons Bill. They believe it is well understood by the hill-farming community and the majority of people who now have access to the countryside. So it is understood on both sides. I beg to move.
Baroness Byford: I am grateful to the noble Lord, Lord Livsey, for raising this issue. As we have debated the Bill—both the noble Lord and I worked on the CROW Act—it has become clear that people who have right of access are able to do various things under one Act which they are not able to do under another. So full marks to the noble Lord for picking this up.
I shall be quite interested to hear what the Minister has to say. She may say that the amendment is not necessary but, if she does not accept it or it is decided that it is not right in this part of the Bill, we should return to the matter on Report. There are real differences between what people with rights of access can do under one Act and what they will be able to do when this Bill is enacted. I suspect that when we come to the NERC Bill we will face similar problems. I am grateful to the noble Lord for raising the issue.
Lord Greaves: This is an interesting amendment but I am afraid I cannot go along with it. It reflects a fundamental misunderstanding of Part 1 of the Countryside and Rights of Way Act in relation to access. That Act gives access to different kinds of land—mountain, moor, heath, down and commons, which is the relevant one here—and under Part 1 you lose the right of access if you undertake the activities in Schedule 2. In other words, you cannot undertake the activities within Schedule 2 of the CROW Act as part of exercising access under that Act.
However, a fundamental part of the CROW Act, which was cited time and time again by Ministers during the passage of the Bill—it is stated very clearly on the Defra website and I congratulate the Government on that—is that the restrictions in Schedule 2 do not apply to rights of access or to people exercising access not by right but by permission of the landowner, or whoever, or under any other legislation. A great deal of legislation, such as the Commons Acts and the Right of Property Act 1925, gave access to a large area of common land, particularly in the Lake District. In other words, it is a fundamental principle that pre-existing rights of access and pre-existing customary access in various places are not in any way affected by Schedule 2 to the CROW Act.
Schedule 2 controls what you do while you are exercising your rights under CROW, such as walking and climbing. If you are there for other reasons—under
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other legislation or following a customary practice, by permission of the landowner and so on—Schedule 2 does not apply. That is utterly fundamental. That is also why I am afraid that, despite its good intentions, I cannot support my noble friend's amendment. I am sorry to have to say this on the last amendment because I have supported him all the way so far.
Baroness Farrington of Ribbleton: The exchange has been fascinating. Amendment No. 252 would introduce the phrase,
"'right of access' means a right of access as defined by section 2 of and Schedule 2 to the Countryside and Rights of Way Act 2000".
I want to put formally on the record what will become apparent very quickly. The noble Lord, Lord Greaves, may not be surprised to hear that I agree with almost everything he has said. I am unable to agree with all his remarks because I have not yet been able to confirm them in full.
Clause 34(3) requires the national authority to ensure that provisions amending existing commons legislation in consequence of the establishment of a commons association preserve any existing rights of access conferred by that association. We think it would be positively unhelpful if "right of access" were defined in the way proposed by this amendment because, as the noble Lord Greaves, has pointed out, rights of access arising under existing commons legislation are not rights defined in Section 2 of the CROW Act. This amendment would mean that the national authority would not be able to preserve those existing rights.
The phrase "right of access" appears in three different places in the Bill. Government Amendment No. 219 removes any reference to a "right of access" in Clause 39, so we do not think the noble Lord's amendment is necessary in relation to that clause. As I said earlier, we have already agreed to look again at Clause 41 to see whether the powers to exempt certain classes of work from the requirement for consent should be amended. So while noble Lords may have some concerns about the definition of "right of access" in Clause 41(3)(a), I suggest that we may wish to revisit that paragraph in any amendments we bring forward on Report.
I shall certainly ensure that we take account of the noble Lord's concerns about the use of the expression and I hope that he will feel able to withdraw his amendment. We have said repeatedly that the CROW Act does not interfere with existing customary access. Where a landowner has been content in the past to tolerate customary access, there is no reason why that should not continue. Moreover, CROW Act restrictions do not interfere with such freedoms in that situation.
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I think that I have agreed almost entirely with the noble Lord, Lord Greaves, and I hope I have convinced other Members of the Committee that the noble Lord and the Government are right.
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