My Lords, I return again to the relationship between public spaces protection orders and what I call special categories of land. This in an important issue, so I will dwell on it for a few minutes. I raised this at Second Reading and in Committee I suggested that these special types of land, where public access is specified and guaranteed by other legislation, should be excluded from public spaces protection orders. The categories of land are: access land under the Countryside and Rights of Way Act, which is mountain, moor, heath, down and commons and now includes the coastal footpath and coastal access land where that has so far been designated in England; village greens and town greens; and rights of way—mainly footpaths and bridleways—which appear on a definitive map and the statement of rights of way which nowadays comes under the Wildlife and Countryside Act and is held by top-tier local authorities.
The purpose of the designation of these kinds of land is to allow public access. To have public spaces protection orders put on them which deny that access looks like an easy and quick way for local authorities to prevent access, which is otherwise a fairly difficult and convoluted process. Public footpaths can be closed or diverted. There is a process by which, over time, access land can have its designation removed. There is also a process by which exceptions and exclusions can be made to access land, under the CROW Act. However, these take time and are difficult, for very good reasons.
In Committee, the Minister said this was okay but that rights of access were for specific purposes. For village greens it is informal recreation. For footpaths it is, obviously, walking along them. For access land it is for accessing that land on foot, together with a restricted number of ancillary activities, such as stopping and having a picnic or taking photographs, but there are a lot of activities which are not allowed. Anti-social behaviour may well be taking place on some of that land which is affecting the enjoyment of it by the people for whom the designation has been made, such as the people walking on it. That is a fair point, so Amendment 47 does not say that public spaces protection orders should not be made on this land. It says that, if they are made, they cannot remove the right of access which is the whole purpose of the land.
I know the Government do not want to do this. I do not know why, because it is very sensible. Nevertheless, I am pressing the case to give the Minister the opportunity of saying exactly how these access rights will be protected. I have had a letter about this from Norman Baker, who was in charge of the Bill within the department. I will read some of it out, because it has not been widely circulated and it is worth putting on record:
“I note your concerns that the new public spaces protection order is a much wider power than the three orders it replaces, and as such could be used to restrict access to common land, access land and rights of way on the definitive map. However, I believe the test and the safeguards we have built in mitigate such a risk.
As Lord Taylor made clear during the debate in Committee, these types of land are important and certainly worthy of the additional debate they received. In fact, in the draft guidance, we specifically mentioned a number of these categories of land because of their importance to both the local community and visitors to the area”.
One of the points that I raised in Committee was the importance of the national bodies that look after this kind of land—the Ramblers, the British Mountaineering Council and the Open Spaces Society, as well as landowners’ organisations and others—being involved in any change in the system. Mr Baker writes:
“We also made clear that where restrictions were necessary, national bodies could play an important role in the consultation process”—
that is not something that I had picked up—
“to ensure that all those affected have a chance to comment. I know my officials are continuing to work with interested groups with a view to making this even clearer in the final iteration”.
This is the vital importance of the statutory guidance, as it now will be, to prevent what I might call rogue local authorities—there are one or two—taking advantage of this legislation and doing things that are not intended. The letter continues:
“However, in terms of restricting access on certain categories of land, I do not believe that this would pass the test, in part because of the final limb, which states that the anti-social behaviour, ‘justifies the restrictions imposed by the notice’. Given the importance of these areas, whether coastal access land or registered common, I cannot envisage a level of behaviour that would constitute such a draconian response. Where a problem behaviour does exist, the flexibility within the PSPO means that the behaviour itself can be targeted rather than access in its totality. This is a major failing in the current system where unless the anti-social behaviour is related to dogs or alcohol, the local authority is left with limited options, too quickly resorted to ‘gating’ in some situations.
In addition, the behaviour that has to be restricted on this land has to be ‘unreasonable’. Again, given the rights afforded to commoners through other legislation, I fail to see how someone
exercising these rights in a responsible manner (for instance, pannage) could be considered to be acting in an unreasonable way. As such, I believe these rights are adequately protected”.
In reading that out, I apologise to the Minister if I have stolen his thunder and he was going to say exactly the same things. However, at the very least, I would like him to guarantee here in the Chamber that what I have said is true and that that is the way in which the Government look at it. In the end, of course, how it comes out in the wash will be how we will judge it. However, the discussions that we have had have been useful in clarifying these issues and in concentrating the minds of people in government as to exactly how these things might work. I hope that the Government will accept my amendment. I have no great optimism about that but, anyway, I beg to move.