Commons Bill [HL]

My Lords, having been a critic of Defra in the past, it is a surprise and pleasure to thank it for its openness in the consultation period and its willingness to consider proposals put forward. It is also a pleasure, but no surprise, to thank the noble Lord, Lord Bach, for hosting the meeting last week. As we heard, the 1965 Act was flawed. Another Act was promised ““very soon”” to rectify the problems, but 40 years is not very soon. Many rights that were wrong were registered, and some rights were not registered at all. But there is no ability now to correct that. Can the Minister say why not? Farmers in places such as Dartmoor have been severely prejudiced by the 1965   Act. They were promised by the government at the time that it would all soon be okay because another Bill would come through. They are now not going to have a chance to rectify the situation. I agree with what my noble friend Lady Byford said when she pointed out some of the difficulties of the Bill. It is without doubt a bonus to lawyers. They will have a field day. My remarks from now on will mainly concern non-urban and larger commons. Unlike the noble Lord, Lord Cameron, I do not like Part 2 and I would advise any owner to steer well clear of it and stick to voluntary agreements. Like my noble friend Lord Patten, I am intensely suspicious of statutory schemes involving a Secretary of State. The briefing that I have received indicates that many bodies are already thinking of the commons more in terms of landlord and tenant—I am more used to landlord and crofters—than in terms of owner and common right holders. I find that profoundly disturbing because governments of both persuasions—the government of   which I was a member was no different—have increasingly given rights to tenants at the expense of owners. I can foresee exactly the same situation occurring here under a statutory commons association. Therefore, there is no question in my mind that owners’ interests will be prejudiced by the Bill. As Part 2 is to work from the bottom up, as the Minister said, can he confirm that an owner will have the power to veto the formation of an association? In contrast to the noble Lord, Lord Chorley, I do not like Clause 30 at all. In particular, I dislike Clause 30(3)(g). Who will have the final say when it comes to managing heather, gorse, grass and other vegetation? Will it make any difference if there is an existing agreement between the owner and English Nature or the Countryside Council for Wales? Clause 31(3) refers to the surplus of commons. At present, that right belongs to the owner, but that is going to be transferred to the association with no compensation to the owner. What will the position be? At the end of the day, will the owner still have the right that exists now, or will it be the association? Now I come to the killer point about Part 2, and pick up on a point made by the noble Lord, Lord Cameron. Clause 30(6)(a) states that the association must have regard to the Secretary of State’s guidance. But Clause   33(3) allows the Secretary of State to make directions. Now if one looks at Clause 31(2), one will see that an association has the power to raise money as well as to acquire and dispose of land. We have good ingredients for trouble here. Turning to farming and good husbandry, I agree with the noble Lord, Lord Cameron, that under-grazing is as bad as overgrazing. Like him, I believe that it will be just as serious a problem as overgrazing is now. Overgrazing was exacerbated by the wrong registration of interests in the 1960s and by inappropriate subsidies. However, the new farm payments schemes will help to solve the problem and it is likely to rectify itself in the short to medium-term. But it is right to stress that on some common land, it is very important that the common is heavily grazed in order to maintain the diversity of plants. We shall undoubtedly have to look at Part 3, Protection. Clause 36 is worrying. Does the Minister envisage a number of de minimus works that an owner can undertake without threat of a lawsuit and ending up in the county court? I have two final points. I hate ““sustainable agriculture””. Nobody knows what it means. It has a wide definition. My noble friend Lord Ullswater suggested a definition. I cast my mind back to my Cirencester days and suggest an alternative to the Minister. How about ““good husbandry and land management”” as an alternative? It is well documented in law and land agents knew what it meant. We did not need to go to lawyers to have it interpreted. Finally, what about archaeology on the common? There is no mention of archaeology in the Bill. Surely, there ought to be a responsibility for it to be preserved.