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Marine and Coastal Access Bill [HL]

I shall also speak to Amendments A350 and A354 in my name and the names of the noble Lord, Lord Pannick, and my noble friend Lord Taylor. This group of amendments is about the right of appeal, or the non-right of appeal. The House of Commons Select Committee on the Environment, Food and Rural Affairs concluded in July 2008: ""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"." The pre-legislative scrutiny Joint Committee on the draft marine Bill reached a similar conclusion in its July 2008 report. It said: ""The Bill contains no mechanism for appeal against decisions by the Secretary of State to designate land as coastal margin. The … appeals mechanism"," under the Countryside and Rights of Way Act 2000 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’"." Evidence from the Country Land and Business Association and the National Farmers’ Union strongly argues for the need for an independent appeals mechanism. 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 mechanism 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. Noble Lords will wish to ensure that costly recourse to judicial review is not the only option to challenge the alignment, spreading room and exclusions and restrictions which should be subject to appeals mechanisms. On 18 December 2008, your Lordships’ Select Committee on the Constitution reported to the House on the Bill. The committee opined that rights of appeal against administrative decisions of public authorities are an important aspect of the relationship between the citizen and the state. There can be no argument about that. 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 appeals system, the remedy of launching judicial review proceedings in the High Court—you could not make it up if it were not in the Bill—is for most citizens more of a theoretical possibility than a realistic means of seeking redress 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 it takes for the claims to be heard are completely unrealistic barriers for ordinary people to the use of the judicial review procedure. 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. As a matter of constitutional principle, therefore, rights of appeal should be created. The range of powers contained in this Bill to require coastal landowners to permit public access to their property ought, in your Lordships’ committee’s opinion, 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 a realistic option for the vast majority of ordinary people in this country. Your Lordships’ committee is not persuaded by the reasons advanced by the Government for not including any appeal procedures in the Bill. It is said that few appeals will be successful, and that the experience of the appeals system under Part I of the Countryside and Rights of Way Act 2000 is that appeals were disproportionate, lengthy and expensive. Predictions of the outcome of appeals are not, I suspect your Lordships will agree, a sound argument against the creation of an appeals system. Indeed, we would be concerned if an appeals system led to a large proportion of successful challenges, as that would indicate that there was something badly wrong with the administration of the system or the terms in which the legislation was framed. In the absence of such an appeals system, stakeholders, or those who can afford to do so, would have to resort to judicial review proceedings in the High Court, which are neither cheap nor quick. It is in the Government’s hands to recommend an appeals system that seeks to minimise both the time taken and the costs involved in allowing citizens to question the judgments of Natural England and the Secretary of State. There is no suggestion of, or support for, slow and extravagantly costly appeal processes. A measured response in relation to the coastal access duty would be to attempt to create a better appeals system rather than to exclude one altogether. The Government’s second reason for rejecting an appeals system is that there will be a consultation, and landowners would have a right to make representations before the line of route was determined by the Secretary of State. This appears to conflate two different steps in the decision-making process. The principles of procedural propriety, otherwise known as natural justice, require that landowners be consulted and are given opportunities to make representations before a final decision is made. Such a right is given express recognition in the Bill. This right exists as a matter of common law, whether or not spelt out in legislation, in relation to many if not most types of decision-making by public authorities. The right, however, is separate from the question of whether a citizen should have a means of challenging the final decision after it has been made. The grounds of appeal might 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. The duty to strike 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 decisions. No decision-making process in the Bill allows appeals by individuals. A balance must be struck between citizen and state in the context of the Bill. The Bill must be amended. I beg to move.