Commons Bill [HL]

My Lords, I beg to move that this Bill be now read a second time. Its purpose is to improve the management of common land in England and Wales. Common land is one of the ancient institutions in our country. It was a core component of the manorial system in Norman England, and shared grazing of some kind was probably widespread even before then.   Today, common land remains important in the agricultural economy of many upland areas in England and Wales, but it is also a vital resource for recreation and biodiversity and a key element in the landscape of the countryside, as well as a cultural kingpin in many hill farming communities. It is a rare occasion on which this House has an opportunity to debate the arcane depths of commons law. The previous government Bills on common land were in 1964 and, before that, 1908. I look forward to debating with noble Lords the exercise of rights of pannage and piscary, the importance of hefting, the principles of levancy and couchancy—that is how you pronounce it—and the origin of rights of common appendant and appurtenant. I can even tell your Lordships what those terms mean. The Bill has had a long gestation. As long ago as 1958, the Royal Commission on Common Land recommended legislation to provide for three things—registration, public access, and improved management. The first of those recommendations led to the Commons Registration Act   1965, which was well meant but somewhat flawed and designed only as a short-term measure to identify and register common land and town or village greens. I note that the noble Earl, Lord Ferrers, who is not in his place—indeed, I did not tell him that I would refer to him—spoke at Second Reading on that in 1965. The second recommendation—public access—was eventually delivered by the Countryside and Rights of Way Act 2000, which will have secured a public right of access to nearly all common land in England and Wales by the end of the year. But on the third recommendation—improved management—the aspirations of the royal commission remain unfulfilled. The Bill will deliver long-term improvements to the registers of common land and   town or village greens, new mechanisms for the management of commons, and much-needed reforms to the controls on works and fencing on common land. The Government have consulted extensively on new legislation. Consultation in 2000 was followed by the publication of a White Paper, the Common Land Policy Statement, in 2002. There has been a continual process of consultation and dialogue since, and we are grateful to all who participated in the consultations and seminars; their input has been invaluable in preparing the Bill. I will now take noble Lords through a summary—a summary only, I promise—of the Bill. Part 1 deals with the registration of common land and greens. It greatly improves the registration system introduced under the 1965 Act. It makes similar reforms to the registers of both common land and greens, but for convenience, I will refer simply to the commons registers. Clauses 1 to 5 require the registers prepared under the 1965 Act to continue to be kept by commons registration authorities. It applies to England and Wales, with certain exceptions, such as the New Forest and Epping Forest, which are subject to special legislation. Although there is common land in Scotland and Northern Ireland, the Bill does not apply to those countries because their historical, legal and management contexts are very different. A key measure in this part is the requirement for the commons registers to be kept up-to-date. Clauses 6 to 13 require transactions affecting common rights to be registered in order to be effective. So, for example, if the owner of a right of common wishes to surrender that right to the owner of the common, the right will only be extinguished when the register is updated accordingly. There is a particular point to which I would draw to the attention of the House. Most rights of common are traditionally attached to the land farmed by the commoner. Following a decision of the judicial committee of this House in 2001, commoners are entitled to dispose of rights of common independently from that land, thus severing the common right from the land to which it was originally attached. The local link between the commoners and the common may then be lost, since the rights can be sold to anyone, including farmers who live far away from the common and have no awareness of the local management practices. Clause 9, therefore, prohibits the severance of rights of common, with limited exceptions. It is intended to have effect from the date of publication of the Bill, 28   June 2005, subject to the Bill receiving Royal Assent. The Government believe that retrospective legislation is necessary to prevent commoners from severing their rights prior to the Bill coming into force. Clause 14 sets out criteria for registering land as a new town green or village green, where the land has been used by local people as of right for lawful sports and pastimes for a period of at least 20 years. It makes clear that a new green may be registered where the use of the land continues up to the time of the application for registration, or within a time specified in regulations. This will reverse the effect of a recent decision of the Court of Appeal, in what is known as the Trap Grounds case, which has made it practically impossible for a new green to be registered against the wishes of the landowner, despite 20 years of use. Clauses 15 and 16 enable commons to be exchanged for another piece of land, whereby one piece of land can be freed of its status as common land and another piece of land can be registered in its place. However, the Secretary of State will consider the public interest before permitting such exchanges to take place. Clause 18 provides for corrections to be made to the registers in certain circumstances. I should add that the   Bill does not generally enable corrections to the number of rights registered under the 1965 Act. We recognise that many rights registered in the 1960s were   excessive or inflated and, sometimes, out of all proportion to the capacity of the common. But we believe, as most stakeholders do, that we must move on and that reopening these registrations 35 years later would not be helpful in achieving better management of our commons. I have already mentioned that the 1965 Act was flawed. Schedule 1 enables the rectification of certain mistakes in the commons registers that arose out of misguided or mistaken applications under that Act, or where applications were rejected because of a mistaken understanding of the law at that time. We believe that the Bill presents a balance in carefully defining limited criteria, both for the de-registration of registered land, and for the registration of new land. Schedule 2 provides for a transitional period to register events occurring since the commons registers were compiled, thereby bringing the registers up to date. Part 2 of the Bill deals with commons associations. At present, there is a lack of effective agricultural management on commons and many have suffered significant deterioration. Severe over-grazing has led to damage to the soil, biodiversity and landscape, which is reflected in the poor state of 43 per cent of England’s commons that are sites of special scientific interest. Part 2 will encourage better management of commons by enabling commoners, landowners and others to form statutory commons associations to manage agriculture. The primary purpose of commons associations will be to protect and promote sustainable agriculture on common land. The associations will function through majority voting. That will make it much easier to get agri-environment funding for common land, as an association will be able to enter into an agreement based on a majority vote rather than being frustrated by a few dissenting voices. Clause 25 enables the Secretary of State or the National Assembly for Wales to establish commons associations by order. Orders will be made only in response to local demand: commons associations are not to be imposed from the top down, but cultivated from the bottom up. In particular, Clause 26 requires there to be substantial local support for an association to be established. Individual establishment orders will set out the functions and administrative arrangements of each commons association, including how majority voting will work. Commons vary widely, so each association will be tailored to suit local circumstances. I intend to have a model establishment order ready for the Committee on the Bill in the autumn. Clause 30 sets out the functions that may be conferred on a commons association. They include making rules on the management of agricultural activities, the exercise of common rights—such as controlling grazing where overgrazing is a problem—and the removal of livestock grazing unlawfully. Rules may provide that a breach is to be a criminal offence, but we intend that they will be subject to approval by the Secretary of State or Assembly. We intend that each establishment order will specify the circumstances in which the association must seek the consent of landowners or other interests for certain agricultural activities. Our primary aim in this Part of the Bill is to empower associations to regulate activities relevant to sustainable agricultural management on commons. That is best achieved through majority voting on decisions that are then binding on everyone, but we recognise that landowners’ rights to manage their own land must be respected, and we will hold further meetings with stakeholders so that we can achieve the appropriate balance. Part 3 modernises and streamlines existing controls on works on common land, which are primarily found in Section 194 of the Law of Property Act 1925, as many ex-law students will recall. Those controls provide that works that restrict access may not be undertaken on common land without the consent of the Secretary of State or the National Assembly. We have taken the opportunity to make three significant changes to the controls. In the 1925 Act, controls apply to land that was   subject to rights of common on 1 January 1926. Clause 36 instead provides that controls on works will apply to all registered common land. We believe that that will ensure significantly greater clarity. The Bill also brings commons subject to other legislation, metropolitan commons and National Trust commons into the modernised regime. The second change is that we have extended the powers to take action against unlawful works on commons. At present, that power is available to the landowner, the local authority and those with a legal interest in the land, such as commoners. Clause 39 extends that power to include anyone who has a right of access to the land and to commons associations. Thirdly, the controls will extend to new mineral workings. Such works were exempted from the controls contained in the 1925 Act, but we see no reason why, in 2005, potentially significant development of that kind should continue to be exempt. We have also taken the opportunity to modernise the procedures for applications. There are new criteria for determining applications, and we are introducing new powers to enable the Secretary of State or National Assembly to regulate the application process; impose conditions on a consent; charge fees for applications; delegate the decision-making powers to another person or body; and direct that certain persons or works should be excluded from the need for consent. Part 3 also re-enacts existing powers for local authorities to act to protect common land with no known owner. It provides a power of last resort to certain public bodies to stop unauthorised agricultural activities causing damage on common land where neither the commoners nor land owners are able to prevent it. Part 4 contains powers to amend other legislation to update references to common land and town or village greens to refer to ““registered”” common land. I highlight the welcome that the Bill has received from many interested parties—I have correspondence with me from a number of them, and I am sure that other noble Lords do too—and from noble Lords themselves who have been kind enough to discuss the Bill with me and my officials before Second Reading. The Bill cannot alone secure the continued vitality of our common land, but it will go a long way towards providing better management and protection for future generations. I commend the Bill to the House. Moved, that the Bill be now read a second time.—(Lord Bach.)