Commons Bill [HL]

My Lords, I thank the noble Lord, Lord Bach, for his introduction of the Bill. He has unravelled the complicated nature of the rules and legislation that has covered common land and the rights of common over such land since the Norman Conquest. I congratulate him on his clarity, which I am sure will assist us all in our endeavours. I also thank him for the briefing discussions we have had prior to this Second Reading. Common land occupies some 549,000 hectares, 80   per cent of which is privately owned and 50 per cent designated as SSSIs, a significant percentage in England and Wales, particularly in the uplands, such as the north Pennines, Dartmoor and the Black Mountains. Over half England’s common land is situated in Cumbria and North Yorkshire. It is clear that the management of the common land and its interrelationship with national parks, areas of outstanding natural beauty and SSSIs are important. At the time of registration some 1,740 commons were in private ownerships, 679 had private owners for parts of the land, 1,230 were owned by parish and other councils and 431 were owned by a variety of organisations, including charities and trusts. Many commons have multiple owners and, according to Defra, some 1,900 have no known owners. It is a fair task that we are undertaking. Of the 7,039 common land units in England, only 34.6 per cent had registered rights of common, and those commons accounted for nearly 88 per cent of the total area of common land. We on these Benches support the improvement of the environmental conditions of common land and agree that in some circumstances greater collective action is required to strengthen the management of its use. We hope that commons that are currently being well managed will be left to continue with their successful working practices. I am sure the Minister agrees with me that, as he has previously said, flexibility in the approach to common land is key. However, we are disappointed that the Bill before us is so skeletal and leaves so much to regulation. As he indicated, in 2000 the Government committed themselves in the rural White Paper to addressing this common land legislation and have subsequently had various stakeholder groups and working parties running through 2003 and 2004. Therefore, we hoped that by now, some five years on, the Government would at least present us with a complete Bill. The first part of the Bill deals with registration of common land and town and village greens. Aspects that concern me are mainly related to the work of the registration authorities. These are county councils, unitary authorities, London boroughs and Welsh county and county borough councils. There seems to be general agreement that the 1965 Act has not been successful. Whether that is because it was flawed legislation or because it was not used adequately is not as important as the consequence of its failure. I do not know, and perhaps the Minister can tell us, how many commons and greens are still disputed. Is there a backlog; if so, is it evenly spread across the authorities or do some have enormous problems and others few or none? Has the failure affected rural areas more than urban authorities? Are authorities with a large total area of common land worse affected than those with less? In implementing the Bill, do authorities have adequate staff, with the necessary qualifications and experience, or will recruitment and retraining be the order of the day? Will the Minister outline the full consideration of the amount of additional work and the cost to local authorities that that will require? Does he realise that in many authorities the burden of work will fall on departments already grappling with the Licensing Act? While on the question of local authorities, will the Minister address an issue of growing concern to many authorities? In an increasing number of cases in urban areas—for example, Sunderland, Richmond-upon-Thames and Oxford—the 20-year use rule (for walking dogs, for example) has been used by activists opposing housing proposals to enforce the registration as a village green of land that few reasonable people would view to be a village green. Plans to build affordable housing, which the Government are pressing on local   authorities, have been frustrated. How will the Bill address that issue, and has the department made any assessment of the amount of land that might reasonably be registrable as a village green under the existing legislation and the risk that that might pose to housing needs? The detail of the Bill will be examined closely in Committee, so we shall be able to dissect the rights and wrongs of creation, severance and the transfer of rights in gross. I am, however, intrigued that the question of computerisation occupies fewer than 15 lines of type. Experience in Defra, which the noble Lord will get used to, of the use of computers to monitor progress—for example, on foot and mouth disease, to assist in the   registration of the cattle-tracing scheme or to streamline payments across the Rural Payments Agency—has not exactly been a bed of roses. The problems over the mapping exercise following the CROW Act have also been less than reassuring. I think that we shall need to spend time on Section 24. Commons associations have been called for, in one form or another, for some time, and we support that. They are an obvious way to obtain the consensus necessary to get better management of commons to the advantage of both the environment and those with rights in their use. However, the Bill poses as many questions as it answers. Do the Government envisage that an area of common will have its own association, as in Yarningale; will it be possible to have different bits with separate bodies, as in Yarningale north or Yarningale south; or will there be a case for a single association to cover an entire county or even a sub-region, as in Warwickshire or central West Midlands? What is the position regarding the National Trust? There is apparently a potential conflict between the powers and duties of the trust under its Acts and the powers and duties of the statutory commons associations. Unless it is made clear that the National Trust Acts take precedence on trust-owned commons, the Bill could undermine the protection and promotion of the wider public interest, particularly in access and recreation, but also the conservation of the natural and cultural heritage. Although we are assured that in practice the creation of the commons associations will be in response to local demand, which the Minister has recognised again, there is considerable central direction involved. I wonder whether, in order to meet government targets, we might find that locals are perhaps being ““persuaded”” to respond in the required fashion. Will the Minister confirm that? The Bill fails to determine the associations’ remit or to go into detail about their membership. My noble friend the Duke of Montrose will refer to that in greater detail. How will the Bill interact with the provisions in the Countryside and Rights of Way Act? I am particularly thinking of developments in rights of access to private property across common land by a vehicle. Many householders have already paid for the privilege. Many more presumably will be affected as new houses are built. Will the Minister assure us that no new interpretation of any part of the Bill will adversely affect the newly acquired rights of such residents? Will he also provide an indication of what legislation will take precedence? For instance, I believe that I am right in saying that some commons are used by members of the public for camping, lighting fires and playing ball games, whereas the CROW Act specifically prohibits those activities. The first and second parts of the Bill rely heavily on the Government’s old friend ““regulation””. Despite the regulation task force, the much vaunted government targets to reduce regulation and the obvious fatigue in the population at large with consultation, training and   paperwork consequent on it, this Bill is riddled with   regulation. For example, in Part 1, there are 16   subsections which begin with the words, ““regulations may”” and a further nine which use a phrase such as ““regulations may provide””: it appears 59 times in the Bill—and then there are the orders. We cannot possibly scrutinise effectively a Bill which reveals so little about itself on the surface. Our suggested approach is for the Government to publish their regulations in draft before Committee. I am grateful to the Minister for indicating that that will happen. We approach a long Recess of three months. I would be grateful if those regulations could be forwarded to us at home in good time before we return in October. There should also be guidance in advance of Committee on the probable level of fees that may be charged by registration authorities and commons associations, and on the costs and charges to be levied as part of the process of challenging existing records or applying to amend them. The Bill is concerned with the management and protection of common land; that is, management for the sake of the environment and to promote sustainable agriculture, and protection to ensure that the public right of access is not diminished. We support the general intention, but have concerns about the degree to which the rights of owners may be subordinated to the demands of a small number of people, many of whom may not be local. Also, we have particular concerns about and wish to see defined the meaning of ““sustainable agriculture””, which means different things to different people. We must be careful to strike the right balance between farming and conservation. Linked to that, I know that other Members of your Lordships’ House will raise their concerns about how the Bill might affect shooting and fishing rights. Throughout the Bill, the phrase ““any person”” recurs. Will the Minister tell us whether it is to be construed literally or whether it may be taken to mean an individual, a body of people or even a named body? Do the Government have any intention to filter the demands of any person to ensure that the legislation is not used in a frivolous or a malicious fashion? My extensive postbag reveals that in general the Bill has widespread support, and in principle we support it too. However, many questions remain on the detail as well as several concerns on points of principle. We shall need to cover all those issues as we go through the Bill in Committee. In the mean time, however, I await the Minister’s response to today’s proceedings.