| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Schedule I leaves most staff of the proposed Marine Management Organisation without the immunity and privileges of a Crown servant, leaving them open to civil or criminal proceedings. They currently enjoy such immunity as staff of the Marine and Fisheries Agency. Under the Bill they will lose that if they transfer to the Marine Management Organisation, as they will cease to be Crown servants and will become public servants. I understand that Crown immunity means that emanations of the Crown are not susceptible to prosecution for offences either created by statute or of the common law. While there may be some doubt as to precisely what is covered by an emanation of the Crown, surely Ministers and their departments are included.
The Government see a need to retain the current immunity but only in relation to one group of staff. Enforcement officers and any person assisting an enforcement officer, by virtue of Clause 250, will continue,
- “not to be liable in any civil or criminal proceedings for anything done ... in or in connection with the discharge or purported discharge of the person's functions under this Act”.
Why only that group of staff? The Government have conceded the principle of the need for the retention of current immunity with the inclusion of Clause 281, so we are not debating a principle. We are debating why the protection that currently exists should be retained for some staff but not all. What is the overwhelming reason that requires an existing arrangement to be withdrawn from so many?
If Crown immunity is removed by the creation of the Marine Management Organisation, staff other than enforcement officers may also become personally liable for action taken in the course of their duties. One example where that could be a problem is when a licence is withdrawn from an individual and, as a result, they lose their income. Other decisions made by individual officers which could lead to them finding themselves subject to legal proceedings by a disgruntled party might relate to changes in fishing quotas to conserve stocks, or the opening and closing of areas for fishing for the same reason. Threats of legal action over such issues are not unknown, and if disgruntled parties think that in future they can get at the staff direct in legal proceedings, as opposed to proceedings against the organisations, some may decide to do so.
30 Mar 2009 : Column 873
The prospect of court proceedings against them would create uncertainty and worry for the staff affected—staff who have, as now, simply been seeking to carry out their duties in a responsible and conscientious manner. The proposed change in status for the MMO to a non-departmental public body would also exclude the staff from the legal services from the Crown that Marine and Fisheries Agency staff enjoy today.
Why do the Government have to make those changes? Why can they not leave the question of immunity for the staff in the new MMO as it is in the MFA? The Minister said some two months ago in this Chamber that without the specific immunity given in the Bill to enforcement officers, their freedom to perform their duties would be hampered by fear of legal action being taken against them. Why only enforcement officers? Why not those carrying out other duties, including the ones to which I specifically referred? I urge my noble friend to reflect again on the matter. I beg to move.
Lord Hunt of Kings Heath: I am grateful to my noble friend for raising this matter. She is right: we discussed this in an earlier debate on the transfer of staff from the Marine and Fisheries Agency to the Marine Management Organisation. Subsequent to that, last week I met my noble friend Lord Rosser with some representatives of the union involved to discuss the matter. I found that extremely valuable. I hope that I was able to reassure staff about our intention with regard to them, and our recognition of the value both of the staff who are working in the MFA at the moment and of those who will be transferred. I wanted to assure them that within and under the auspices of the Marine Management Organisation, they will be treated appropriately, that there will be sufficient attention to training and development and that there will be opportunities for staff working within the MMO to apply for suitable positions within the Civil Service. I said at that meeting that I am very happy to continue any discussions that arose from the points that were raised. I hope that my noble friend Lady Gibson will accept that I well understand the issues that she has raised and the need to ensure that staff are aware of their rights in the new organisation, and that we are absolutely determined to ensure that the MMO is seen as an organisation that has good HR policies, supports the staff and builds on the huge expertise that is there already.
I hope to reassure my noble friend Lady Gibson that, as is the case for MFA staff now, MMO staff who make a mistake in the normal course of their duties and are subsequently pursued through the courts will be protected by the usual employer liability. I assure her that this is the same process whether the employee is a civil servant or a public servant, and I hope that she will be reassured about MMO staff in the normal course of their duties.
My noble friend also asked about the additional liability protection for enforcement officers who carry out inspections and investigations at sea and on land, often with just one assistant to support them. We are introducing this additional liability protection for enforcement officers because of the very nature of their responsibility; the noble Baroness, Lady Carnegy, gave an example in our earlier discussions of the
30 Mar 2009 : Column 874
The immunity from liability under Clause 281 extends to any person who has Part 8 common powers conferred on them and to any person assisting him or her. An officer enforcing licensing legislation under this Bill will be appointed under Part 8 and will have the common enforcement powers, so they will be an enforcement officer under Clause 281. The removal of liability provided by Clause 281 does not apply if an enforcement officer acts in bad faith and there were no reasonable grounds for him or her to act in such a manner or if their action was unlawful under the Human Rights Act. My noble friend seeks to remove these conditions so that the exemption from liability would always apply, whatever the circumstances. This would mean that the officer or assistant would not be liable even if they take action where there are no reasonable grounds. The Food and Environment Protection Act 1985 and the Sea Fisheries Act 1968 have similar caveats.
Amendment A263 is unnecessary, as all MMO employees will be protected by normal employer liability. We want to provide liability protection because of the particular responsibility of enforcement officers, but the protection is not open-ended, as I have already said. Equally, I reassure my noble friend that if the other MMO staff were to make a mistake in the normal course of their duties and were subsequently pursued through the courts, they would be protected by the usual employer liability. We see no difference between the process for a civil servant and the process for a public servant, as an employee of the Marine Management Organisation is.
4.15 pm
Baroness Gibson of Market Rasen: I thank my noble friend for that helpful and full reply. With his assurances, particularly the offer to continue discussions if it is felt to be necessary, I beg leave to withdraw the amendment.
Clause 286: The coastal access duty
Amendment A265 had been withdrawn from the Marshalled List.
30 Mar 2009 : Column 875
Baroness Byford: We now move on to the last part of this Bill, which looks at coastal access. I hope that I am right to welcome this before I speak to my amendment. It will be a change from having to deal with the nitty-gritty of the other parts. First, I should remind Members of the Committee of my family’s farming interests and that we are members of the NFU, the CLA, the Countryside Alliance and the National Trust, all of which are listed. I should also say that as an inland farm we have no interest in coastal access whatever.
Many people have looked forward to the Committee reaching this stage of the Bill and to seeing the Government’s commitment to the opening up of coastal routes. People want a safe route ensured, wherever it may extend. As regards the proposed path, a balance needs to be struck between access for individuals, the requirements of landowners, those who have homes and businesses, and MoD land, as well as the protection of wildlife and biodiversity. The responsibility that the Government have acknowledged of individuals taking advantage of the opening up of coastal routes is hugely important. I welcome the removal of occupiers’ liability and the inclusion of natural features.
It is the Government’s ambition that the route will be established within the next 10 years, although I see from their briefing that, if it has not been fully established by that time, it will be an ongoing process. Therefore, although the target is clearly marked, it may not be achieved in that time. A question has been raised about costs, to which perhaps we will return when we debate later amendments.
The Select Committee on the Environment, Food and Rural Affairs in another place looked particularly at coastal access, which, as the Minister will know, was not possible for those of us who sat on the pre-scrutiny committee of both Houses because we were so restricted in time. Paragraph 21 of the EFRA committee’s report states:
“There are likely to be economic, health and social benefits from more people visiting, and enjoying, the coast. The South West Coast Path is a very good example”.
- “the draft legislation requires amendment and modification before we can be satisfied it is sensible and fair”.
The committee believes that it should not be left to Natural England to adjudicate.
The Joint Committee’s report recognised that there may be,
- “limits on what is practically achievable, given the number of inevitable interruptions to the path”.
- “concerns about whether unrealistic expectations have been created by the description of a continuous coastal path”.
The report later refers to the erosion and flood risk that may occur. I also bring to the attention of noble Lords what the committee says about costs on page 92:
“We note the widespread concern that the estimated funding of £50 million over 10 years for the coastal path is inadequate and that local authorities may be left with significant costs. We recommend that the Government produce a detailed estimate of the costs of both establishing and maintaining the coastal path, and subject this analysis to concerned parties for consultation”.
30 Mar 2009 : Column 876
I apologise for the length of my introduction, but I feel that it is necessary because we have reached an important part of the Bill.
I turn now to the four amendments I have tabled in the group, Amendments A265A, A267A, A267B and A267C. The Minister will not be surprised to learn that they are all probing in nature. Amendment A265A looks at the provision that the coastal route should cover the entire English coast. I have tabled an amendment seeking 85 per cent coverage just so that we can discuss the issue; it does not indicate a target that we should aim to achieve. However, I challenge slightly the concept of the “whole” coast; it may not be possible to achieve it because of practical difficulties. When we talked previously about the Marine Management Organisation, it was already recognised that there would be problems in working out where the path can and cannot go. In some places it will have to turn inland. What is to happen with land owned by the MoD, the NHS, schools and businesses? How is access to be dealt with fairly? Can the Minister enlarge upon this aspect in his response?
Amendment A267A suggests replacing “enabled” with “allowed” in subsection (2)(a). Perhaps my interpretation of the use of “enabled” is not correct, but it implies that money will be spent to render the land usable. Much will depend on how Natural England spends it, and over what period. What construction standards are to be applied to footpaths and bridges, which authority will pass the work as completed and fit for use? The word “enabled” carries implications beyond “allowed” or “permitted”, and is a slightly strange one to use in the Bill.
Amendment A267B is another probing amendment. Will Natural England become involved in building access routes from highways to the coastal path, or will people have to reach it by the best means they can? Similarly, will Natural England become involved in arranging public transport to access points anywhere along the path? Lastly, how do the Government envisage joining all these paths up? Amendment A267C seeks to leave out subsection (3) but in reality is an opportunity to probe the Minister on these points.
The “margin” of land is not defined in terms of feet and inches, whether it is land on both sides of the path, and whether it should extend over the entire length of the route. Is the path to be fenced or otherwise made secure to avoid the danger of people falling over cliff edges? Also not defined is how wide the proposed path will be. There has been discussion of it being 4 metres wide, which is very broad, but nothing is specified in the Bill. I draw the attention of the Minister to the south-west coast path, which I have had the great pleasure of walking along on many occasions. Some stretches are very narrow indeed, and the difference between a path 4 metres wide and a narrow one is marked. It may be that some of the paths the Government propose to open up will be narrower, but no definition is made.
No one has asked me to table these amendments; they have not been put forward on behalf of an organisation. However, I hope that they highlight some of the practical issues we need to debate because the one thing we want to do is ensure that we get the
30 Mar 2009 : Column 877
Lord Greaves: We have four amendments in this group, to which I shall speak briefly in due course. I do not blame the noble Baroness, Lady Byford, for saying a few general words as we come to this first group of amendments on coastal access. Her amendments are appropriate and I congratulate her on getting them in first, as it were. In many ways this part of the Bill is what I might call the daughter of CROW. It originated most recently in Section 3 of CROW as an aspiration for the future, and here we are, some eight or nine years later, discussing it. A small number of us are survivors of the CROW debates; I was a new Member of your Lordships’ House and the noble Baroness was lording it on the Conservative Front Bench as its spokesman. I look forward to locking horns with her again and to looking for areas of agreement.
It has been a long, winding road to get to this stage—although I should perhaps find a maritime metaphor—and this is a historic moment. We on these Benches give our general full support to Part 9 of the Bill but that does not mean that there are not many details to be discussed. The important point made by the noble Baroness, Lady Byford, is that this has to work; it must be right. Whether we will all agree on exactly what is right I do not know, but whatever comes out of this has to work. The worst thing possible would be to pass legislation which does not work in practice.
This part of the Bill has longer antecedents than the CROW Act. I have here some extracts from the famous Hobhouse report of 1947, which was the forerunner to the National Parks and Access to the Countryside Act 1949. Paragraph 201 refers to beach, shore and inland waters and states:
“In our proposals for new legislation we recommended that beach and shore should be included in the definition of uncultivated land which it would be the duty of the planning authority to designate for public access”.
Paragraph 202 becomes quite lyrical and states:
“The love of open air is nowhere more clearly shown than in the use which is made of the coasts of this country. For countless thousands the seaside is almost synonymous with the annual summer holiday”.
That has changed a bit but many people still go to the seaside. The paragraph continues:
“Every week-end and bank holiday still larger numbers travel with the coast as their goal, whether they move on foot or by cycle, car, bus or train. It is a curious anomaly that, for the most part, members of the public possess no legal right of access to the shores which they so freely use”.
“Since it is evident that a general right of roaming over the foreshore and the land immediately behind is a right unknown in law”—
that is arguable, but even so—
- “we recommend that this land, referred to as beach and shore, should be subject to access designation”.
That was in 1947. Some 62 years later, we are now finally getting round to it and we welcome that.
30 Mar 2009 : Column 878
We also support the concepts behind this part of the Bill: the concept of the long-distance route, which will go around as much as possible of the English coast, and the concept of the associated coastal access land—referred to in the discussions prior to the Bill as “spreading room”, and now in the Bill as the “coastal margin”—and the interesting concept that the route itself will consist of access land. I do not know who dreamt up that last one, but it is the breakthrough that allows the legislation to be put forward as it is now; the route will not be a right of way under highways legislation unless it happens to follow an existing right of way. It will be access land as such.
4.30 pm
The downside of this part of the Bill is its complexity and the way in which the three different parts relate. There is the Bill itself, which talks about principles and the overall scheme. There is the National Parks and Access to the Countryside Act 1949, now 60 years old, a famous and iconic Act that set up the national parks and created access to the countryside in many places but that went only a certain distance—certainly not as far as the Hobhouse vision would have had it. That Act is now rather battered and hollowed out, but nevertheless still contains the section about long-distance routes. Then there is the CROW Act, which some of us here remember discussing in 2000. In retrospect, it was a missed opportunity to take the long-distance-route part of the 1949 Act and re-enact it in a modern form. There is a complex relationship between those three different Acts, which not only makes it difficult for us to understand now and will lead to complexities in the legislation, but will lead to great difficulty for people in understanding it when the Bill is, as we hope, enacted. Nevertheless, that relationship is what we are presented with and, despite its complexity, it ought to work.
Amendments A266 and A267 in our names are to probe the suggestion in the early part of this part of the Bill as to whether we are talking about one route or several routes. The Government talk about a coastal route around the coast of England, yet the Bill itself refers to whether it can be one or more routes and what their status will be. Will the result of each report that comes from Natural England on each part of the coast be a separate route legally, or will it all join up eventually into one?
Amendment A269 refers to the timescale that the noble Baroness, Lady Byford, referred to. This is an attempt to turn the aspiration of the Government and Natural England into rather more of a commitment in the Bill and to test how serious the Government are about doing it within 10 years.
Amendment A321 extends the “must” from carrying out the duty as a whole to the specific production of the reports. That is already implied but the amendment is, again, to get a commitment from the Government that it is not just the scheme that is a “must” but the whole 10-year programme on the English coastal path.
Amendment A267ZA—we are back to Zs again—refers to the issue that the noble Baroness referred to: the status of the path and the status of the rights that people will have on it. I agree that “enabled” is a
30 Mar 2009 : Column 879
The noble Baroness said that her amendments were probing, and I accept them in that spirit. However, because they would remove the access land—the coastal margin land, the spreading room—and because the path will be over such land, they would tear the heart out of the legislation. I am sure that that was not her aim, but that is technically what her amendments would do. Like her and other Members of the Committee, I look forward to the Minister’s reply.
Lord Taylor of Holbeach: I must apologise to the noble Lord, Lord Greaves. So keen was I to join the debate on this new part of the Bill that I failed to acknowledge that he had amendments in the group.
I declared at the start of Committee my interest as a grower, farmer and landowner. I am also a member of the NFU and the National Trust. However, I do not own any land that is adjacent, or even proximate, to the coast to the extent that it is likely to be affected by a coastal path or even a likely diversion.
It is not surprising that noble Lords opened with some general comments, for which I hope we can be forgiven, because this is a major part of the Bill. We welcome from these Benches the recreational opportunities which a coastal path can bring.
I am very familiar with the Wash coastline. My wife is the county councillor for Holbeach, which has the largest section of the marsh. The high watermark is bordered by a sea bank, on which there is a well used footpath. Her division stretches some seven miles out to sea to the low watermark. It is an area where the coast is accumulating, borrowed from Yorkshire in the main. Surprisingly enough, the land level to sea is considerably higher than the land inside the sea wall, which was reclaimed some 50 to 100 years earlier. It is an untypical part of the English coastline, but below high water there is very little political activity; there is just the sound of the odd seal clapping and plenty of bird life.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |