Marine and Coastal Access Bill [HL]

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 someone other than the Planning Inspectorate. Again, the current wording gives the flexibility to do that. However, if that were to happen, I would expect that if it was a person other than the Planning Inspectorate, it would have the same kind of qualifications and independence of judgment. I am happy to reiterate that point. 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 that the Secretary of State should approve the proposals with certain modifications which in the opinion of the appointed person might or would mitigate the effects of the failure to strike a fair balance. In the situation envisaged under paragraph 11(7)(a) the Secretary of State would be required to consider any recommendations made under paragraph 11(8)(a) or (b), and we expect the Secretary of State would approval 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. That makes it clear that the Secretary of State has to make the final decision because he is looking at the proposal as a whole. 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. I thought the noble Baroness made a heroic effort to explain these amendments, and I come to them in some detail. Amendment 124V would make, ""representatives of relevant recreational users and conservation interests"," 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, ""such other persons as may be specified in regulations"." 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, ""fail to strike a fair balance"," it would say that they, ""fail to demonstrate that Natural England aimed to strike a fair balance"." 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. Amendment 124X is what the noble Baroness described as the ramblers’ amendment. I understand where the ramblers come from. They are, of course, intrepid explorers. No doubt, to them an impractical route would just be a daunting challenge, but none of us would wish to have a coastal access report modified in a way that makes a route impractical. Surely practicality must be a key concern for all parties. I have checked this and I understand that there are many precedents for using the term "practical" in legislation. According to a search that we undertook last week, there are well over 3,500. Amendment 124Y would allow the Secretary of State to make regulations covering the advertising of objections, and actions taken on objections, made by persons with a relevant interest in the land. This amendment would enable objections to be advertised before the appointed person has had an opportunity to consider whether any objection is admissible. Of course, once the Secretary of State has taken that initial decision, any objection that is admissible would be advertised. The amendment appears to visit advertising at too early a stage. Amendment 124Z would mean that Natural England must send the Secretary of State a copy of the representations made by other persons on a coastal access report, other than those set out in paragraph 2(2)(a) to (f), instead of only a summary of those representations. In speaking to Amendment 124V I have already named several bodies that we expect to include in the regulations, so that their representations would go in full to the Secretary of State. They include such organisations as the Country Land & Business Association, the NFU, the Ramblers’ Association and the Open Spaces Society. We do not think that the amendment is required. Amendment 124AC would delete paragraph 11(8). It is important to provide that, where the appointed person considers that Natural England’s proposals may fail to strike a fair balance and there is no modification that would satisfy the coastal access requirements, the appointed person may recommend that a certain modification would or may mitigate the effects of the failure to strike a fair balance. We have already discussed that. This power is a very sensible provision where the Secretary of State considers that a gap in the route is undesirable but, in that context, attempts to strike as fair a balance as possible. Of course, here the advice of the Planning Inspectorate or the appointed person would be very helpful. Amendment 124AD deletes paragraph 13(3), which provides for subsections (2) to (5) of Section 250 of the Local Government Act 1972 to apply to any local inquiries or other hearings held by the appointed person. The amendment would mean that there would be no specific rules governing the conduct of inquiries and such procedural matters as summoning witnesses and paying their expenses. It would also mean that the appointed person would be unable to make any orders about the cost of the inquiry. Consequently, the Secretary of State would always bear the cost of the hearing or inquiry. The noble Baroness asked why we did not use Section 250. The provisions that we have put in place mirror therequirement for applicants under the CROW Act, as set out in Schedule 3 to that Act. That is probably a rather more relevant piece of legislation to refer to. On Amendment 124AE, we think it appropriate that the Secretary of State can make regulations covering the procedure for the conduct of local inquiries and hearings. The removal of this ability could make the inquiry process unworkable. The procedures for dealing with appeals against any restrictions and exclusions of access under the CROW Act system were set out in regulations, and we should follow that precedent here. Amendments 124AF and 124AG would make changes to the way in which the Secretary of State might publish his determination on the coastal access report under Section 52 of the 1949 Act. The current provisions provide some flexibility for the Secretary of State and are appropriate in the circumstances, so we are not happy to consider the changes proposed in the amendments. Finally, Amendment 124AH would require the Secretary of State to notify those who have made representations to Natural England under paragraph 7(1) after he has made a determination on Natural England’s coastal access report. Those persons are already covered by the notification requirements in the paragraph, as the Secretary of State must inform all those with a relevant interest in affected land. Such persons would be the ones to make the objections, so we have covered the point raised by the noble Baroness. I do not know whether the noble Lord, Lord Greaves, would think that he had had a fair response. I understand where he is coming from, but overall I think that we have got the balance about right, so I hope noble Lords will give the government amendments a fair wind. Amendment 124L agreed.