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The Secretary of State makes a determination on the report as a whole. In making the determination, he must consider certain information including any objections, Natural England's comments on them, the report from the appointed person and any representations made and Natural England's comments on them. This is set out in paragraph 16.
At this stage, it will be for the Secretary of State to consider whether he should approve the proposals with certain modifications, which in the opinion of the appointed person either might, or would, mitigate the effects of the failure to strike a fair balance. The Secretary of State could approve the proposals with a modification so that they came as close as possible to meeting a fair balance in accordance with the coastal access requirements. We recognise that there may be some instances where the Secretary of State might consider that there was no practicable route that would strike a fair balance because of the effect on the landowner, but where in the circumstances the option of leaving a gap in the route would not appear to strike a fair balance either, for instance, because of the inconvenience of a gap in the route or because access would be denied to particularly attractive coastline. In these cases, the Secretary of State would look at the option which came closest to providing a fair balance.
The Secretary of State must give notice of his determination to persons with a relevant interest in affected land or publish such notice, and must give notice to certain bodies. The notice must include, so far as is relevant to the objection, a statement of his reasons for the determination. That is set out in paragraph 17.
I apologise for going through this procedure in some detail. Clearly, it is an important procedure, and I hope that this has been useful in aiding understanding of how it will work. It has been carefully structured so that it reflects the structure of the Bill. I am very grateful to noble Lords who have taken part in our discussions, many of whom are in the Chamber. As regards the amendments tabled by the noble Baroness, Lady Hamwee, I realise that we have not quite met all concerns, but I do think that in generalI welcome the support of the noble Lord, Lord Taylor, for thiswe have achieved the right balance that noble Lords have sought. I beg to move.
Lord Goodlad: My Lords, I am most grateful to the Minister for responding positively and in such detail to the recommendations in the report of your Lordships Select Committee on the Constitution, published on 18 December last year, that the range of powers contained in the Bill to require coastal landowners to permit public access to their property should be accompanied by a right to appeal to an independent body and that the possibility of making a claim for judicial review in the High Court would not have been proportionate or realistic for the vast majority of aggrieved citizens. I welcome the Ministers confirmation in very recent correspondence that it will, none the less, be open to a person who believes that the Secretary of States determination in respect of a coastal access report is legally flawed to seek a judicial review of it.
Your Lordships committee has recently expressed concern that the government amendment does not refer in direct terms to the inspectors of the Planning Inspectorate and that the status and qualifications of the appointed persons are of constitutional significance. In your Lordships committee's view, the proposed system of appointed persons should be seen to operate at arms length from Ministers and from Natural England. The Planning Inspectorate, a recognised appellate body, would, in the view of your Lordships committee, satisfy that requirement.
The Minister has explained in recent correspondence where the Government do not believe it desirable to make a direct reference to inspectors of the Planning Inspectorate in the Bill, although he has expressed the Governments intentions in his speech. He may wish to share with the House the undertakings that he gave to me in his letter of 29 May about the persons to be referred to in the envisaged regulations. However, I reiterate that I am extremely grateful to the Minister and the Government for the attitude that they have shown and for the Ministers typical courtesy.
Lord Taylor of Holbeach: My Lords, I thank the Minister for tabling these amendments. I have added my name to them to indicate my satisfaction that the Government have listened to voices from many quarters and have come back with a procedure that they hope
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Of course, I have a few questions about these amendments, as I am sure will other noble Lords. In particular, I would be grateful for a little more information about what happens after the appointed personsor, as we may take it, the Planning Inspectoratehave ruled that the route does not meet a fair balance. The helpful notes that the Government have published on these amendments suggest that it is entirely down to the Secretary of State whether to accept the independent appointed person's ruling. As far as I can see, there is nothing to ensure that the ruling is enforced.
Is this really the way forward? Surely it would be better, in cases where there is no convenient way through a particularly troublesome patch of coastline, for the route to stop and continue after a short break than to breach what the Government have accepted are the legitimate rights of an owner or occupier to the use of his land? Of course, we would not want to see lots of breaks, or unnecessary breaks, in the coastal route, but it will only be in the most unusual circumstances that it is found to be impossible to continue the route without imposing an unfair balance on the landowner. Indeed, it would be most unlikely that it would ever be found to be impossible to backtrack a little and send the route to meet up with an existing right of way around a difficult patch.
However, aside from this small concern, we are very happy with the Government's proposals. I thank the Minister and his team of officials once more for agreeing to what was probably the most important concern that we had with this entire Bill.
Baroness Hamwee: My Lords, my noble friends amendments do not indicate dissatisfaction with the Governments amendments, but it would have been out of character for him not to have gone through the several pages of the principal amendment with a fine-toothed comb and come up with a number of small matters, which I now raise.
Again, he is not disagreeing with the Governments approach. Rather, because he is meticulous in these things, he wants to ensure that it has the rigorous scrutiny that the proposal deserves. I shall try to go fairly quickly through the points that his amendments raise. Amendment 124V to line 33 in paragraph 2(2) of Amendment 124U would add to those who are to be given notice of the report,
My briefing on this is fairly obvious, but the Minister may be able to give the House an assurance that these groups will be included in regulations made under paragraph 2(2)(f). I hope that is the case.
On Amendment 124W, I am not sure that there is more to be said about striking a fair balance and aiming to strike a fair balance. I appreciate that my noble friends amendment would tilt the careful balanceI have to use that word againa little way away from where the Government are aiming to strike it because the focus is on what Natural England has done rather than the outcome of it.
Making practicable a separate requirement for the appointed person to satisfy under 3(6)(a) when proposing modifications risks allowing interruptions to the route being accepted as modifications. To allow such modifications would destroy the integrity of the route and defeat the purpose of the coastal access duty. To avoid this it is necessary that the appointed person uses only the second and third requirements of 3(6) when considering and making modifications.
As regards Amendments 124Z, 124AA and 124AB, comments on coastal access reports made to Natural England by third parties have only to be summarised. These amendments would provide that they should be sent in their entirety to the Secretary of State. It is not proper that the Secretary of State should make a final decision on the basis of a summary. I am sure that there are plenty of people in the Secretary of States office who can assist in providing a summary, if that is helpful. However, comments made by third parties to Natural England should not be summarised.
Amendment 124AC seeks to remove certain provisions as regards what may be included in the report. My noble friend tabled this in order to probe the matter. The Minister has probably described the position pretty fully. I do not know whether he wants to add anything to those comments. Amendment 124AD is also a probing amendment with regard to costs applying to local inquiries. I should be grateful if the Minister would say how the Government came to the conclusion that this provision should be included.
Amendment 124AF, which is obvious, would add a provision that the Secretary of State must publish the determination. Amendment 124AG is on the same point. The paragraph which my noble friend seeks to remove allows the Secretary of State to publish only if he considers it appropriate. Amendment 124AH, which my noble friend says is also obvious, would add to the list of those to whom the Secretary of State must give notice of the determination anyone who has made a representation,
All of that might seem somewhat picky, splitting hairs and so on, but, as the noble Lord, Lord Taylor, said, this has been a very contentious areaor the
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Lord Pannick: My Lords, I was one of those who expressed concern in Committee about the absence of appeal provision in the Bill. I echo noble Lords in thanking the Minister for moving significantly further than a coastal margin by introducing these amendments. However, I have a continuing concern about the government amendments.
Can the Minister confirm my understanding, which is the same as the understanding of the noble Lord, Lord Taylor, that the Secretary of State will have no duty to adopt the conclusions of the person appointedthe planning inspector? That person simply makes a recommendation which the Secretary of State must consider, but need not follow. The provision will give the Secretary of State, as I understand it, complete discretion on whether to agree or disagree with the judgment of the planning inspector.
The Minister will know that the Joint Committee on Human Rights advised in its 11th report of Session 2008-09 that, in order to comply with Article 6 of the European Convention on Human Rights, it is necessary to provide for an appeal to an independent person who has a power to decide the issue. That is because the decision will determine civil rights, and judicial review is not a sufficient remedy for Article 6 purposes on an issue which raises questions of fact and degree. That was the view of the Joint Committee. I respectfully agree with it.
Can the Minister please explain to the House what is the policy objection to the Planning Inspectorate, as the person appointed, having a power to take the decision in this context? Or at the very least, what is the policy objection to confining the power of the Secretary of State to interfere with the view of the Planning Inspectorate to exceptional circumstances where an issue of policy arises?
I ask the Minister to reconsider that aspect of these helpful amendments. I ask him to reconsider giving the Planning Inspectorate, as the person appointed, the power to decide on matters, other than in exceptional circumstances where the Secretary of State considers that an issue of policy arises. If the Minister does not reconsider and does not introduce a further amendment to that effect, my concern is that the United Kingdom will inevitably face expensive and protracted legal proceedings brought by aggrieved landowners that the next Government are likely to lose in Strasbourg in four or five years time.
Lord Judd: My Lords, it would be remiss not to put on the record from these Benches our appreciation for the tremendous amount of work that has gone into this amendment by my noble friends and, of course, by officials. The noble Baroness, in running through her remit from her noble friend, referred to small matters. I am not sure that they were all small matters. As one who is intimately involved in the national parks, I have been close to the real anxieties among those who have a huge contribution to make to the country in their concern for quality in terms of amenity, conservation and recreation.
I know that there are several references to relevant interests and the Secretary of State will have the power to decree what they are, as the Secretary of State will make regulations. It would be reassuring and helpful for these tremendously committed and important people in our society if my noble friend could unequivocally say at the Dispatch Box that the regulations will underline the importance of such bodies being part of the list of people to be consulted, not least on appeals. That is where the anxiety exists. The Government have demonstrated time and again their exciting commitment to quality and such considerations in so much of their policy and how it is carried out. It would therefore be a pity if such reassurances were not forthcoming when my noble friend replies.
Lord Livsey of Talgarth: My Lords, first, I congratulate the Government on their Amendment 124U. I felt strongly before the amendment was tabled that natural justice for landowners was not contained in the Bill. A balance needs to be struck, and the amount of work to produce the amendment, as the noble Lord, Lord Judd, said, is admirable. I am sure that a tremendous number of hours were spent producing the amendment.
I take note of the remarks of the noble Lord, Lord Pannick, on human rights. He made some powerful points. We are in a difficult position with this part of the Bill, as we have to judge the issue of accountability. I can understand where the noble Lord is coming from in relation to the Planning Inspectorate, but we also have to balance the accountability of the Secretary of State. This is a difficult area. The words of the noble Lord, Lord Pannick, carry a lot of weight in this argument. The noble Lord, Lord Judd, agreed with many of the amendments put forward by my noble friend Lady Hamwee for our noble friend Lord Greaves, and I believe that my noble friend agreed substantially with what the noble Lord, Lord Judd, said.
The important points in the amendments, although some are points of detail, must not be cast aside. I, too, have knowledge of national parksI live close to oneand have seen all kinds of problems being resolved, or not. The detail is not to be cast aside even though the substantial government amendment is to be warmly welcomed.
Lord Hunt of Kings Heath: My Lords, it has been a highly interesting debate. I start by responding to the noble Lord, Lord Goodlad, and welcoming his overall comments. He invited me to clarify a couple of points that he has raised in correspondence, which I am happy to do.
The first point is why the amendment does not refer directly to the Planning Inspectorate. The simple answer is that we would not expect a Bill to be so specific. The Planning Inspectorate might alter or disappear; or it might change its name in future. The current wording of the Bill preserves the ability to change the appointed person if necessary. The Planning Inspectorate is not a body established by statute, so that flexibility is of particular relevance. In addition, although we do not envisage there to be at this stage, there might be cases where the Secretary of State decides that the most appropriate person to whom to refer objections is
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I will come to the question of judicial review in a moment, but I confirm that it will be open to a person who believes the Secretary of State's determination in respect of a coastal access report is legally flawed to seek judicial review of that determination.
I come to the question raised by the noble Lord, Lord Taylor, and the noble Lord, Lord Pannick: why there is no requirement for the Secretary of State to accept the recommendation of the appointed person. That is a fair question, but there are two points here. First, one has to be clear: the Secretary of State has a different role from that of the appointed person. The noble Lord, Lord Livsey, put his finger on it when he talked about the Secretary of State's ultimate accountability. I strongly reiterate that point. The Secretary of State's role is to look at the report for the whole stretch of coast. There may be reasons why and circumstances in which the Secretary of State may disregard the recommendation of the appointed person when looking at the overall stretch of coast. However, I confirm that that would be extremely unlikely and would be done only for very good reason. Ultimately, the Secretary of State's determination on the report as a whole would be open to judicial review.
Paragraph 16 makes clear that the Secretary of State must consider a report of the Planning Inspectorate before making a determination on a stretch of coast. It would not be a light matter for the Secretary of State simply to turn down or reject the recommendation of the appointed person. None the less, we believe that, ultimately, the Secretary of State must be able to do so, although, as I said, it is likely that that would be a very infrequent event.
I am reluctant to debate ECHR matters with the noble Lord, Lord Pannick, given his wide expertise. All that I can say at this stage is that I have very carefully asked for advice on the matter. I am assured from the advice that I have been given that the provision is ECHR-compliant, although of course I would be happy to engage with the noble Lord in further discussion on the matter. I fully accept that the comments that he and the noble Lord, Lord Taylor, have made are meant to ensure that the legislation works as effectively as possible. I would certainly be very happy to have further discussions on that matter, bearing in mind that, although we have spent nearly six months debating the Bill, it still has to go to the other place, so there is time for further consideration.
On what happens if the appointed person recommends that there is no modification that would satisfy the coastal access requirements, I say to the noble Lord, Lord Taylor, that I hope, as does he, that the circumstances in which that occurs would be very rare. He asked how often that would be likely to happen. I agree with him on that. We are trying to get the best balance so paragraph 11(8) of new Schedule 1A states that the appointed person may in this situation recommend
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The Government agree with the assessment made by the noble Baroness, Lady Hamwee, that the noble Lord, Lord Greaves, is meticulous in his approach, even on his sickbed, and we sense his analysis of this government amendment. I welcome his general support for what he described as a worthwhile compromise. Given that noble Lords have come from a different view on these matters and on objections, it is helpful to reach this consensus and confidence in the Bill as it goes forward.
one of the categories of persons to whom Natural England must give notice of a coastal access report. I understand the point about users being fully taken into account in the process. The categories of persons to whom Natural England must give notice already include,
For all the reasons that we have discussed on many occasions, we prefer to keep the flexibility of regulations following consultations. I listened to my noble friend Lord Judd with great care, and we will have to consult in full on the persons it would be appropriate to include, but we have in mind that they would include the Ramblers Association, the Open Spaces Society, the British Mountaineering Council, the Country Land & Business Association and the National Farmers' Union, and we will listen to other suggestions with great interest, but I think noble Lords can see the balance that we think we need.
On Amendment 124W, the noble Baroness recognised that we think it tilts the balance, and that is our problem with it. It would amend the ground of the objection at paragraph 3(3) so that instead of saying that the proposals in the report,
That would mean that the landowner could not object that Natural England has got the balance wrong. As long as Natural England can show that it aimed to strike a fair balance, the objection will fail. As the noble Baroness said, it tips the balance too far. That is why we really cannot support it.
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