Access to the Countryside (Coastal Margin) (England) Order 2010

My Lords, I, too, am pleased to be present at this reunion of—I am not quite sure what to say—old colleagues. We should perhaps toast as an absent friend the noble Lord, Lord Hunt of Kings Heath, who, along with the Minister, did so much to get the marathon Bill past the rest of us. I understand that people are now calling the Act ““MACA””. I am not sure whether that is a desirable acronym, but that is what happens nowadays. The Minister said that the order is a way forward. I am not sure whether that is a pun about the coastal path or whether the coastal path is going round in circles, but the order is very welcome. I was delighted to hear the noble Lord, Lord Taylor, say that the Conservatives welcome the order and that they support, in his words, "““the principles of coastal access””." It is possible—but perhaps not likely—that after the coming general election the noble Lord may have more to do with the implementation of this order than the noble Lord, Lord Davies. I remain to be convinced about that, but we will see. Who knows? As far as I can tell, having tried to go through the order with a fine-tooth comb, it is in line with the Act and the commitments and statements made by the Government and Ministers as the Bill was going through this House and the House of Commons. As always in these matters, I am astonished by the complexity of the order. I wonder whether modern legislation needs to be quite as complex as it is; the country did not collapse 30, 40 or 80 years ago when Acts of Parliament were much simpler and there was much less secondary legislation. However, we are where we are and we get what we are presented with. As always, I blame computers because they make it all possible. However, as I said, the order seems to be generally in line with the Act and what we were told and I very much welcome it. As the Bill was going through your Lordships’ House, we made the point that nearly everything in the order should have been in the primary legislation. When the CROW Act was passed nearly 10 years ago, the equivalent regulations were in the primary legislation, particularly in Schedules 1 and 2. I still do not understand why it was not possible to amend them directly through the Marine and Coastal Access Bill as it was going through the House and before it was passed. However, we are where we are and we now have the order in front of us. One general question concerns where we are with the draft scheme. I understand that the consultation period has now closed and I wonder how long it will take Natural England to present the definitive scheme to the Secretary of State for approval. One or two minor points struck me as I was going through the order. Some of them are repetitions of points that I made when we were discussing Part 9 of the Marine and Coastal Access Bill as it was going through the House, while the others have just occurred to me. These will probably come to light when we see the final version of the scheme but, more important, as we see the proposals for each section of coast. The proof of the pudding will be in how it works out in practice. Some of the points raised by the noble Lord, Lord Taylor, in connection with the relationship with farmland, farmers and farming will have to be resolved locally on the ground and we will see in two or three years’ time whether it succeeds or not. We need to come to a solution that is, if not the most desirable, acceptable to all the different parties involved. Clearly there will have to be compromises. Article 3, which covers descriptions of coastal margin, refers to part of the coastal margin as being, as we would expect, "““land which is seaward of … an approved section of the English coastal route and lies between””," that route and the sea. I started thinking about what would happen when there were breaks between the path and the sea. It occurred to me that if there was a building—say, a coastguard’s cabin—on top of the cliff, everyone would take the common-sense view that there was a hole in the access land in the coastal margin where that building was and that the coastal margin would continue either side of the building. Therefore, the margin would continue on the seaward side of such an interruption, even though technically it would not run continuously between the path and the sea. However, I wondered how big an obstruction would have to be before Natural England said that there was no longer access to the foreshore. An example might be a housing estate that goes right up to the edge of the foreshore. Because of the nature of the foreshore there—perhaps there is a cliff and then the foreshore—the coastal path has to go round the back of the housing estate. Alternatively, there might be some sort of defence installation or perhaps a caravan site that the path cannot go through, or, if the path can get through, there will still be a gap between the path and the foreshore. How big does the obstruction have to be before access to the foreshore is stopped, or will such access always be presumed where it is possible and sensible, even if quite a big obstruction forms excepted land between the foreshore and the path? Again, I suspect that that is something that we will find out in practice when we look at the proposals that Natural England comes back with, but it is an interesting question that I do not think we have discussed before. Article 5 concerns cases where the landward boundary is to coincide with a physical feature. I simply repeat the point that I made before. If that physical feature is a cliff that can be climbed on or if it has important natural features—perhaps plants or birds nesting—it is important for a number of reasons that the boundary should coincide with the cliff top and not the cliff bottom. That issue has arisen in a number of places on ordinary CROW land. I made that point when we discussed the Bill as it went through the House and I make it again now. Part 2 of the schedule concerns restrictions to be observed by persons exercising right of access and relates to Schedule 2 to the CROW Act. The important point to make here—it has been made many times but is still misunderstood by some people—is that these restrictions apply to the right of access under the CROW Act but do not apply to any other access, whether by right or by permission, that exists on that land. Specifically, in relation to coastal land, if there are at the moment common-law rights—for example, of access to the foreshore on horse—are they affected in any way by this Act? Do they still exist and apply? Equally, if people have, by custom or by permission of the landowners, been able to do things on land that are specifically excluded from the right of access under CROW, will they still be able to do them if the same conditions continue? This was a source of great confusion when the CROW Act was first passed and it is still sometimes a source of confusion because of the wording. If you are on the land because you are exercising the right of access under CROW, these restrictions apply. If you are on the land by virtue of some other right, or by consent, these restrictions do not necessarily apply. They may, but not necessarily, and they certainly do not apply in the form set out in the order. That is a very important principle because this Act, like the CROW Act, is not intended to restrict existing activities that happen because people are there either by right or with permission. I heard what the noble Lord said about salt marshes and flats. It is clear that in some cases it is sensible that there should be restrictions, but I hope that these will not be automatic restrictions whereby just because something is a salt marsh or a flat people are not allowed to go there. There are many salt marshes and flats to which it is perfectly reasonable for people to have access. ““Unsuitable”” is the sort of word that appears in legislation and potentially gives lawyers a field day. However, if common sense is applied, we can reach a satisfactory situation. Finally, I hope that Section 26 restrictions, which are for nature conservation and heritage preservation, will not be used in a blanket or draconian way where they apply to climbing on cliffs. At the moment a whole series of extremely intricate rules and regulations applies to where climbers can climb on cliffs where birds are nesting. They are generally known to climbers as ““bird bans””. I remind the Committee that I have been a climber all my life. These rules are negotiated in a very intricate way by the British Mountaineering Council and its local representatives, the RSPB and its local representatives and other local nature conservation bodies. They apply particularly to sea cliffs and they work. They are completely voluntary; there are no sanctions for breaking them. I make a point that I have made once or twice in your Lordships’ House: when you have a group of fairly anarchic, disorganised people, such as rock climbers, who by and large are not organised in clubs, organisations or societies but do it off their own bat, the system works. It works because the people taking part in the climbing accept it. It has been negotiated by their representatives, the BMC and their local access representatives. Any attempt to bring in bans on a wider, more blanket basis, which are clearly not related to the particular circumstances of particular birds on particular cliffs, would not work because people would start to ignore them. It is just one of those things. We have a system that a lot of people put a lot of effort into. It works and everybody agrees that it works. The fact that there are climbers on adjoining parts of the cliff is a disincentive to those who might want to abseil down and steal eggs or whatever they might want to do. It is a system that works and I urge that any attempt to put blanket statutory bans on these cliffs should be resisted. That would work, in practice, far worse than the present voluntary system. That is the end of the party political broadcast on behalf of rock climbers. I end by, once again, thanking the Government for the order and looking forward to walking on the first of the new paths and the access land that is opened up.