Marine and Coastal Access
Bill
1. The Committee is appointed "to examine
the constitutional implications of all public bills coming before
the House; and to keep under review the operation of the constitution".
In carrying out the former function, we regard our main task as
being to identify questions of principle that arise from proposed
legislation and which affect a principal part or parts of the
constitution. This report draws to the attention of the House
a constitutional issue arising in Part 9 of the Marine and Coastal
Access Bill.
2. Part 9 of the bill proposes to place on Natural
England and the Secretary of State "the coastal access duty",
which would require them to secure a route around the coast of
England that is accessible for recreational purposes on foot or
by ferry and a "coastal margin", to be "accessible
to the public for the purposes of its enjoyment by them in connection
with that route or otherwise" (clause 286). This duty may
be "discharged by them in stages and within such period as
appear to them to be appropriate". Natural England and the
Secretary of State "must aim to strike a fair balance between
the interests of the public in having rights of access over land
and the interests of any person with a relevant interest in the
land" (clause 289). The role of Natural England is to prepare
a report, recommending to the Secretary of State how the coastal
access duty will be fulfilled. Natural England's reports will
be in the form of a description, rather than a detailed map, of
the accessible land. The Secretary of State may approve the scheme
with or without modifications, or reject the scheme and require
Natural England to prepare a new scheme (clause 288). Natural
England must periodically review those schemes which have been
adopted (clause 289).
3. Our work has been greatly assisted by the
pre-legislative scrutiny of a draft bill in the 2007-08 Session,[1]
carried out by the Joint Committee on the Draft Marine Bill and
the House of Commons Select Committee on Environment, Food and
Rural Affairs. The Government have responded positively to many
of the recommendations made by those committees. The Government
have not, however, accepted the recommendations of both committees
that an appeal mechanism should be created in part 9 of the bill
to enable landowners to challenge decisions to include their land
in the proposed coastal route and coastal margin.
Pre-legislative scrutiny in the House of Commons
4. Carrying out pre-legislative scrutiny of the
proposals for the coastal access duty provisions contained in
the draft Marine Bill, the House of Commons Select Committee on
Environment, Food and Rural Affairs concluded in July 2008 that
"The lack of a formal appeal process is a
fundamental weakness of the Bill. As it stands, Defra and
Natural England have control of the whole process from policy
development to implementation on the ground. Neither organisation
has provided us with a convincing explanation why there cannot
be a proper third-party appeal process as well as a requirement
for consultation with landowners and occupiers. We consider the
right of landowners and occupiers to have an independent, third-party
appeal process to be an important element of the fair balance
between public and private interests that the Government is aiming
to achieve. The Bill should provide for such a process."[2]
Pre-legislative scrutiny by the Joint Committee
5. The Joint Committee on the Draft Marine Bill
reached a similar conclusion in their July 2008 report:
"The Bill contains no mechanism for appeal against
decisions by the Secretary of State to designate land as coastal
margin. The CROW [Countryside and Rights of Way Act 2000] appeals
mechanism regarding mapping [of open country and registered common
land to which the public have access] will not apply as there
is no mapping process and Defra has confirmed that the Secretary
of State intends to use powers in the Bill to disapply the CROW
appeals mechanism for exclusions and restrictions. Under the draft
Bill, the Secretary of State may by regulation make provision
for interested persons or organisations 'to be given an opportunity
to make representations to Natural England about matters which
relate to coastal access reports and are of a kind specified in
the regulations'. In preparing its recommendation on the route,
Natural England must consider the representations and send a copy
of them to the Secretary of State, who must also consider them
when deciding whether to approve the proposal. Evidence from the
[Country Land and Business Association] and [the National Farmers'
Union] strongly argued for the need for an independent appeals
mechanism, suggesting that the current mechanism under CROW using
the Planning Inspectorate works well. Other witnesses supported
the need for an independent appeals mechanism as exists in CROW
and other access legislation, such as the Highways Act 1980.
The only legal redress for dissatisfied owners and
occupiers in the absence of such an appeals mechanism will be
judicial review. The representations process in the Bill does
not provide for any 'third party' consideration or independent
appeals process. Even the CROW appeals mechanisms would not provide
this if applied in its current form to the coastal access provisions,
as the Secretary of State would be both designating land (including
exclusions and restrictions) and then deciding an appeal on that
designation. Further thought is therefore needed to ensure that
costly recourse to judicial review is not the only option to challenge
the alignment, spreading room and exclusions and restrictions.
We recommend that the designation of the route and spreading room,
and decisions on exclusions and restrictions, be subject to an
independent appeals mechanism."[3]
The Government's response to pre-legislative scrutiny
6. The Government did not accept these recommendations.
In their response to the committees' reports, the Government said:
"We have taken on board the lessons learned
from the mapping of open country and registered common land under
Part 1 of the Countryside and Rights of Way Act 2000 in terms
of the cost incurred by the Government, the former Countryside
Agency and land owners and managers in connection with over 3,000
appeals against the showing of land on the provisional maps. The
determination of these appeals resulted in less than three per
cent of land being taken off the provisional maps. Our conclusion
from this was that the appeals process for the mapping of open
country and registered common land was disproportionately lengthy
and expensive.
The current provisions in the draft Bill avoid the
complexity of the previous mapping system but provide for Natural
England to consult affected landowners before preparing its coastal
access report which it has to submit to the Secretary of State.
In addition, under section 55C (2)(c), the landowner is to be
given an opportunity to make representations about the line of
the route. Those representations must be considered by Natural
England and passed by Natural England to the Secretary of State
who must also consider them before making a determination as to
the position of the route. The report which Natural England draws
up does not constitute a decision or a series of individual decisions,
which can be appealed against, but rather a recommendation to
the Secretary of State. Moreover, the recommendation does not
relate solely to the land of an individual landowner, but to an
area of the coast where there is a variety of interests. Any proposal
relating to the land of one landowner has implications for other
interests and the report seeks to strike a fair balance between
the different interests. It is then for the Secretary of State
to make a decision on whether the report strikes the correct balance.
This decision is a general approval of the proposals as a whole.
So the resolution of issues arising from the particular concerns
of individual landowners needs to be completed before the Secretary
of State gives approval in relation to the proposals as a whole.
In carrying out these processes both Natural England
and the Secretary of State are required to aim to strike a fair
balance between the interests of the public in having rights of
access over land and the interests of any person with a relevant
interest in the land. There are also certain safeguards written
into the Countryside and Rights of Way Act 2000 which are relevant."[4]
7. The bill, as introduced to the House, does
provide an appeal mechanism in the specific situation where, in
the absence of an agreement with a landowner, Natural England
gives notice that it will carry out works on land considered necessary
to meet its coastal access duty (schedule 19, paragraphs 3-4).
Such appeals will be to the Secretary of State, which in effect
means that the appeal will be determined by the Planning Inspectorate.
In respect of all other decisions relating to the implementation
of the coastal access duty, there are no appeal procedures. As
the Government said in the impact assessment accompanying the
draft bill, the "current proposals for coastal access do
not include a requirement to map all coastal land and the appeals
system is being replaced by a less process-heavy representations
system".[5]
Our concerns
8. Rights of appeal against administrative decisions
of public authorities are an important aspect of the relationship
between the citizen and the State. Without effective appeal procedures,
the citizen cannot easily challenge the lawfulness or merits of
a determination. In situations where legislation fails to provide
for an appeal system, the 'long stop' of launching judicial review
proceedings in the High Court is for most citizens more of a theoretical
possibility than a realistic means of seeking a remedy for an
allegedly unlawful decision. High legal costs, the prospect of
being ordered to pay the other side's costs if the claim fails,
and the length of time taken for claims to be heard, are all barriers
to the use of the judicial review procedure. In any event, the
grounds of challenge on judicial review claims are limited to
questions of law; it is rarely possible to raise disputes about
facts or the merits of the public authority's decision. In a number
of different contexts, we have therefore argued that, as a matter
of constitutional principle, rights of appeal should be created.[6]
9. The range of powers contained in the bill
to require coastal landowners to permit public access to their
property ought, in our view, to be accompanied by a right of appeal
to an independent body. The possibility of making a claim for
judicial review in the High Court is neither a proportionate nor
realistic option for the vast majority of aggrieved citizens in
this context. We are not persuaded by the reasons, as we understand
them, advanced by the Government for not including any appeal
procedures in the bill.
10. First it is said that few appeals will be
successful and the experience of the appeal system under Part
1 of the Countryside and Rights of Way Act 2000 is that appeals
were "disproportionately lengthy and expensive". We
do not regard predictions of the outcome of appeals to be a sound
argument against the creation of an appeal system. Indeed, we
would be concerned if an appeal system led to a large proportion
of successful challenges as that would be a clear sign that there
was something fundamentally wrong with the administration of the
system or the terms in which the legislation was framed. In the
absence of an appeals system, landowners (or rather those who
can afford to do so) will have to resort to judicial review proceedings
in the High Court, which are neither cheap nor quick. As to disproportionality
in terms of length of the process and cost, it is in the Government's
hands at this stage to attempt to design an appeals system that
seeks to minimise both the time taken and the costs involved in
allowing citizens to question the judgements of Natural England
and the Secretary of State.
11. No-one is in favour of slow and extravagantly
costly appeal processes: we acknowledge that some appeal mechanisms
may have failed to strike the right balance between the public
interest in implementing schemes approved by Parliament and the
rights of individuals to question the application of policy to
their particular circumstances. A measured response in relation
to the coastal access duty would, however, be to attempt to create
a better appeal system rather than to exclude one altogether.
12. The second reason given for rejecting an
appeal system is that there will be consultation and landowners
will have a right to make representations before the line of the
route is determined by the Secretary of State. This appears to
us to conflate two different steps in the decision-making process.
The principles of procedural propriety (or 'natural justice')
clearly require that landowners be consulted and are given opportunities
to make representations before a final decision is made, and we
are pleased that such a right is given express recognition on
the face of the bill. This is a right that will exist as a matter
of the common law (if not spelt out in legislation) in relation
to many, if not most, types of decision-making by public authorities.
This right, however, is quite separate from the question whether
a citizen should have a means of challenging the final decision
after it has been made. Indeed, the ground of appeal may well
be that the decision-maker did not properly understand or failed
to give appropriate weight to the matters on which representations
had been made earlier in the process.
13. The idea of striking 'a fair balance'
between different interests applies not only to the substance
of the coastal access scheme but also to the procedures adopted
in reaching that decision. On the basis of the arguments that
we have seen so far, we find it surprising that a decision-making
process that does not permit appeals by individuals can be thought
to be a fair bargain between citizen and State.
1 Cm 7351 (April 2008). Back
2
Draft Marine Bill: Coastal Access Provisions, 9th Report of 2007-08,
HC 656, para 46. Back
3
Draft Marine Bill, 1st Report of 2007-08, HL 159-I/HC 552-I. Back
4
Department for Environment, Food and Rural Affairs, Taking forward
the Marine Bill: The Government response to pre-legislative scrutiny
and public consultation, Cm 7422. Back
5
Draft Marine Bill (Cm 7351), Impact Assessment, p 104. Back
6
See e.g. The Regulatory State: Ensuring its Accountability,
6th Report of 2003-04, HL 68, para 230. Back
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