My Lords, my noble friend Lord Greaves has once again articulated his argument well and, if I may say so, he has also articulated mine. In quoting the letter from Norman Baker he has to some degree stolen my thunder. However, as my noble friend asked that I reiterate the position of the Government on the record, I will do so.
The types of land that he mentioned in his amendment are important and worthy of the additional discussion. Common land, village greens, rights of way and open access land all play an important part both in local communities and in our nation’s heritage. This is exactly why they should be protected from the minority of anti-social individuals who ruin this enjoyment by acting in a way that is unreasonable. I am glad that my noble friend has accepted that the new public spaces protection order could be used positively to protect the categories of land he identifies.
The amendment itself, though, seeks to protect any rights conferred on individuals or groups as a result of other legislation. As I have said before, this amendment is unnecessary. For a new order to be made, the activities have to be “unreasonable”. I do not believe that someone exercising their rights to, for example, collect firewood in a particular woodland could be considered to be acting unreasonably. In addition, while in theory the council could seek to restrict access to that land altogether, I do not believe that that would meet the final limb of the test—namely, that the activities justified the restrictions. Such an absolute ban would likely be disproportionate in legal terms. Indeed, it is the flexibility that we have built into the new power that makes sure that the nuclear option, to use that phrase, is truly a last resort. Where problem behaviour does exist, this flexibility 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 council is left with limited options, and too quickly resorts to gating in some situations.
However, I do believe that where the anti-social behaviour is unreasonable and so bad as to justify restrictions, the council, in consultation with the police and others, should have the ability to act, and act fast. That said, given the continuing concerns which my noble friend has expressed, I assure him that Home Office officials will continue to work with interested bodies to see how the statutory guidance can address
these issues more effectively. We have already emphasised in the draft guidance the importance of these categories of land, but the draft guidance is exactly that—a draft. We want to make sure that by the time we publish the final statutory guidance, it reflects the needs of professionals and the interests of the users of rights of way, access land and village greens.
Many professionals will be aware of the special rights and protections afforded to such land, but where they are not, we can make sure they have the relevant information so that their decisions and actions reflect the needs of the whole community. In the light of these assurances I have given, rather reiterating points made by my friend, colleague and fellow Minister Mr Norman Baker, I ask my noble friend to withdraw his amendment.