Commons Bill [HL]

My Lords, I am extremely grateful for the noble Lord’s semantic distinction that he drew to my attention. The point is that in the uplands the system of common land is as relevant to contemporary agricultural practice as tillage of enclosed land is in, say, East Anglia. The misfortune that the commons have had goes back to the atrophy and then final death of the copyhold system, which was brought about in the end by the Law of   Property Act 1925. The system of managing the commons depended upon the manorial courts and, once the copyhold system finally died, the general work of the manorial courts went with it. The Minister has referred to the 1958 Royal Commission and the 1965 Act and so on but, as everyone has said, the problem is that things have proceeded far too slowly since then. A number of previous speakers have talked about land. It is very important in thinking about the problems of commons to appreciate that both the common land itself—using the word in a layman’s term—and the rights of common are real property. They are all, in law, types of land. The problem we have had since the collapse of the manorial courts is that there has been no proper system in place to enable these very curiously intertwined rights in land to be organised in such a way that they can meet the requirements both of contemporary agriculture in particular and the wider pressures that exist. I believe therefore that it would be desirable in time to see commons associations filling the gap that the manorial court system left. It is important to remember in the context of the manorial courts that, first, the practice and rules that applied in them varied considerably from place to place according to the particular circumstances which pertained. But, equally, the system of law overseen by the manorial courts was, none the less, part of the law of the land. It seems to me that that provides a valuable and useful template for the commons associations. It is one   thing to say that you should have a commons association only if the commoners concerned and the landowner want it, but you must always remember that organisations of this kind are needed only when there is a problem. If you do not have an association in place before a problem arises, you will not be able to solve the difficulty in which you find yourself. Therefore, I think that if you look at the matter over a longer period—and I take a slightly different view from a number of noble Lords; I may be considered a trifle idiosyncratic—there is a strong case for saying that we need to establish over time a proper system over all common land so that the various rights in land in it can be exercised appropriately as circumstances demand. As I understand it—and it seems to me to be correct—what the Government are saying is that the commons associations are there essentially to organise these rights in land and to organise them in the interests of the agricultural activities of those carrying that on on the common itself. I think that that is right. If you look at, for example, the Lake District, to which the noble Lord, Lord Clark of Windermere, referred, there were a number of categories of land, some of them in the metropolitan district council area in South Lakes, which is the most rural metropolitan district that one could ever possibly find. Some land was held   by the National Trust and other land was held privately. I was always brought up to believe that people could, as a matter of general practice, wander wherever they liked over the high fells. Even if the landowner did not want that, there was nothing he could do to stop it. The reality is that there are systems in place in this country to deal with the environmental aspects of land management from a public perspective and, now, in   regard to the problems of access. The commons association should be the interface with—if it was enclosed land—the landowner and the farmer to deal with the requirements that modern society has put on it. Equally, looking at the Bill, I can see no reason why the commons associations should necessarily be restricted to single commons. There may be an advantage in several commons grouping together. Within that context I cannot overstate—and other noble Lords have mentioned this—the importance of membership of the association. You have to decide how you deal with stint-holders. How do you, for example, equate the right to have a sheep on the common with the right to have a cow on the common? How do you deal with other manorial rights which are affected? For example, on the Pennine commons there is little doubt that the most valuable asset, not only for the landowner but also in terms of spreading the income around the local community, is the shooting right. In many cases, grouse shooting is a very important complement to small hill farmers’ incomes. Finally, what is the position of the owner of the soil of the land, whether or not he is the lord of the manor? How do his interests relate to those of the stint-holders? Each of these parties has politically and legally a legitimate interest in what is going on. I wish to deal with severance. The same principles also apply to apportionment of common rights. I agree with every noble Lord who said that it was undesirable that stints should be separated from the common. But   it is probably slightly wrong to place a general embargo on transfer and severance, except to the relevant national authority. It would be much more desirable for severance to be allowed ““within the parish””. There is a precedent for that in the Greenham and Crookham Commons Act 2002. The wording of that Act would not be right for general legislation but it is an appropriate precedent. I intend to table an amendment to enable that to take place. I have three main reasons. First, as noble Lords have said, there is a risk of danger from under-grazing. Many stints are attached to small parcels of land, which, as agriculture becomes increasingly hard, effectively cease to be farms. That means that the rights to graze go into desuetude. Much the best thing is for those rights to be transferred to adjoining or nearby farms. There should be a market in those rights, which could be confined to those in the immediate locality. There is no need to bring in a national authority because there would be no case of market failure. Secondly, as mentioned earlier, is the question of hefting animals on commons. A lot of nonsense was talked about hefting animals during the foot and mouth crisis. For animals to heft on a common, they should be in reasonably sized groups, which makes it easier for the younger ones to learn what is necessary about the place on which they are grazing. Finally, management generally will be easier the fewer large stint-holders there are, rather than the myriad of people with, say, one or two rights on a common. The same general principles apply to apportionment. Rather than having, as a matter of principle, apportionment of common rights over a piece of land pro rata, it should be organised in the best interests of husbandry in the area. I have other detailed points but I do not want to go into them now. This is basically a good Bill, and I hope that while it passes through this House, we can improve it and make it even better.