Commons Bill [HL]

My Lords, I am glad to follow the noble Lord, Lord Clark of Windermere. I think that his views of commons are slightly moulded by landscape in which he grew up—the heroic uplands of south Cumbria. My views derive from the rather more crowded southern part of the United Kingdom, but I certainly agree with him that we need a Domesday Book or a terrier nationally to set out exactly what is and what is not common land in due course, resources allowing. I am sure that the Bill has been brought to fruition—its gestation has been positively elephantine—for the most benign reasons. No one could be more benign, I know, than the Minister in all his intentions. However, I think that all of us in this place know that, sometimes, Bills that become Acts for benign purposes are used later for purposes for which they were not wholly intended, and the effects turn out to be less benign. So I intend to address my comments this afternoon to those possibilities—a bit of futurology about what might happen when the Bill becomes law. That is all the more apposite since, as my noble friend Lady Byford on the Front Bench pointed out, so many of the provisions are yet to be unveiled to us. We do not know how the regulations are to be cast and how powerful they will turn out to be. Whatever the benign purposes for which the Bill has been introduced, my concern is that, in an unfortunate reality, it could mark an undesirable watershed in the history of commons and even be used as a back door, in decades to come, to the incremental nationalisation of common lands through the steady, later use of the extended state powers that the Bill confers and the new roles of regulation and oversight that it gives to various ““quangoiste”” bodies, which, again, it is quite specific about. Commons are ancient. They sometimes have forms and customs of organisation and rights that pre-date parliamentary democracy. They are peculiarly British and, often, are very untidy. The best description of that quality was given by Alexander Somerville, writing in 1844 in his book, The Whistler At The Plough. He had been to visit William Cobbett, that half-radical, half-conservative—not a bad mixture, to my mind—at his Surrey farmhouse when Surrey was more concerned with agriculture than lawn tennis. Somerville described the setting of Cobbett’s farmhouse, at Normandy, near Ash, like this:"““In front lies a heathy common, in complete disorder as commons usually are””." That disorderliness is often part of the essential quality of commons. They should not be overregulated, prettified, packaged up or, worst of all, urbanised. I worry about what might happen if more quangos or parastatal bodies of different sorts eventually get control of our common lands. I fear that they would soon be domesticated, criss-crossed with gravel paths, street lighting, bossy notices and all the rest of it, in the way in which our countryside is too often stealthily urbanised by people who cannot, unlike the Minister, tell their pannage from their estovers and want to create, essentially, a theme park Britain. That is not desirable. So I have three major problems with the Bill. As the noble Lord readily assented, we are debating the Bill as drafted and not as it may be with regulations in due course. First, I am concerned about the powers to deregister common land and substitute parcels of new land. I appreciate that, when deregistration takes place, replacement land must be provided, but where that is may be critical to, for example, public enjoyment or to the setting of some house or some church or to the way in which a cherished view is seen. A piece of replacement land may turn out to be exactly as the law will set out and exactly the same size as that bit of common to be deregistered but lack other comparable qualities. Of course, deregistered parcels of land may be fitted up for building or redevelopment. We need to be most vigilant about the danger of development by the back door. Secondly, I am most concerned at the extension of state power by the provisions that give the Secretary of State and our parastatal nature conservation bodies the right to intervene to stop agricultural activities that may have been going on for decades or centuries. For example, will they suddenly be able to judge with their new powers that this or that agricultural practice is undesirable because of some passing fashion? That seems to be the thin end of a potentially very big wedge. We need rather more examples from the Minister of the widespread damaging agricultural practices for which this legislative sledgehammer is being brought into being. Will the state and its quangos be allowed to change agricultural practice on unfettered whim, and who will control those bodies? If the commoners do not like what is happening, to whom will they be able, as local people, to appeal? Will they be able to do that only through expensive court processes, by seeking access to judicial review? Many commoners would find that very difficult, being ““little people””, as they would describe themselves, not corn barons or whatever. Thirdly and lastly, we need far more detail and reassurance over the new bureaucracies that will be set up or that the Bill will enable. The local commons associations may be local and harmless, but the overarching, overriding commons advisory bodies could turn out with their unfettered powers to be rather more dirigiste over time. In the case of the former, what level of local support will be needed to set up a commons association? Will the process be really democratic? How will that support really be measured? Much more important, will the larger, more powerful commons advisory bodies not only have oversight and initiative but the capacity to be turned into a useful parish pump appeal court of last resort to which locals can go if as commoners they think that their community commons association has been overbearing? Could what the Bill terms—in that deathless and fearsome phrase—““the appropriate national authority””, whatever that is, in the end decide ab initio to initiate or superimpose commons associations at will and on registered town and village greens—in other words, will it make that imposition from above that the Minister said was not his intent? I do not sense that the Bill makes that superimposition of a formalised and unwanted extra local bureaucratic layer impossible. I end on this note. What seems on the face of it in 2005 a modest tidying-up exercise, 40 years after the previous Act in 1965, could turn out another 40 years on, in 2045, if the powers are exercised to their fullest unfettered extent—we need to ensure that the powers are fettered—to be the year when the creeping nationalisation and bureaucratisation of our commons, which have been in existence for 1,000 years or more, began. I hope that the Minister can reassure me on those points as the Bill proceeds.