Commons Bill [HL]

My Lords, I thank all noble Lords who have taken part in what has been a very constructive debate on a particularly complex and challenging subject. Members in all parts of the House have welcomed the Bill, and it seems to have attracted widespread support from most parts of the country. That is important, as there are vast amounts of common land   in England and Wales. As my noble friend Lord   Williams of Elvel—another Welshman who would have liked to be here today to accompany the noble Lord, Lord Livsey, but was unable—has pointed out to me in correspondence, although 3 per cent of England is common land, a massive 8.5 per cent of land in Wales is common land. Of course, I recognise from our debate today and from the briefing sessions held last week that there are areas of the Bill that we could perhaps improve further. It is our intention to continue to work with stakeholders and parliamentary counsel over the Recess so that, if necessary, we can table amendments in time for Grand Committee in late October. I thank the noble Lords, Lord Chorley and Lord Livsey, for their praise of the Explanatory Notes. Such notes are not always praised. I also thank the noble Lord, Lord   Livsey, for his words on how the officials had responded. I shall attempt to address some of the specific points made during the debate. There is not a chance that I will deal with them all, but I shall do my best. I shall start with the words ““sustainable agriculture””, which have exercised many noble Lords, starting of course with the noble Baroness, Lady Byford. However, noble Lords too numerous to mention made much the same point. I suspect that we shall return to the subject once the summer holidays are over. Let me say this for today: we want commons associations to improve the management of agricultural activities on common land. That includes the social, economic and environmental aspects of agriculture for   current and future generations. The noble Lord, Lord   Tyler, spoke of the generations to come. We believe that such management will contribute to a wider range of public benefits on commons, and I remind noble Lords that commons associations will also be able to make rules to bind all those sharing the resource. The phrase ““sustainable agriculture”” can be defined in many ways. A rigid definition set out in the Bill would restrict the ways in which individual associations could function on different commons. Activities that are appropriate for a large, privately owned upland common might not be suitable on one owned by the National Trust, which must balance agricultural use with providing for public enjoyment, or on a common designated as a SSSI, where nature conservation might be of paramount importance. I turn next to the concern expressed by the noble Lord, Lord Patten, that this may be the start of some land grabbing by the state—not intentional, of course; the noble Lord was careful to say that—and that perhaps 40 years on that may be the result of the innocent-looking legislation being debated on Second Reading in your Lordships’ House today. He is wrong. This is not a way to secure state control of land; it is a sensible attempt to make the complex law in this area more modern and more understandable in the years ahead. The noble Lord put several questions to me. Can the   relevant national authority impose commons associations on an area? As I pointed out in my opening remarks, commons associations will be formed from the bottom up, and there must be substantial support from the key interests in the common before the relevant national authority would establish the association. We know that trying to impose such organisations on commoners will just not work. The proposal needs their full support. The noble Lord also asked what the Secretary of State and the relevant quangos—his word—would use the intervention powers for. They concern in particular the interests of landowners. The powers will apply only when unauthorised agricultural activities are carried out on common land and where they prevent the protection or promotion of sustainable agriculture. That protects the public interest where damage to a common is occurring through unauthorised activity. I emphasise that it is not a general power for the Secretary of State to intervene in the management of common land where authorised agricultural activities are taking place; that is, activities carried out by the owner or with the owner’s authority. The noble Lord put a series of further questions to me, but I hope that he will forgive me if I do not deal with them all now. The noble Viscount, Lord Ullswater, asked what level of ““substantial support”” was required for creating a commons association. I can repeat what I said earlier: substantial support will be required depending on local circumstances. It may be that I shall be pressed on that at a later stage. For a large group of commons with several landowners, commoners and other interests such as sporting rights, the term ““substantial support”” might imply that a majority of all interests must be in favour of establishing an association. On the other hand, on a single common with only one landowner and a large number of rights holders, the support of the majority of commoners might be enough to establish an association. I was asked about sustainable agriculture, husbandry, and the balance that needed to be struck if we were to pass   a satisfactory Act of Parliament. We believe that commons associations will make it easier to achieve the difficult balancing act between the economic, social and environmental aspects of sustainable agriculture, thus allowing the different interests in a common—the landowners, the rights holders and other interests—to work together. That is the aim. The noble Baroness, Lady Byford, raised a number of issues. She asked what area a commons association would cover. The noble Lord, Lord Tyler was also interested in that question. A commons association can be formed for a single common or for a group of commons in an area. We expect that in most cases associations will be formed for groups of commons in a region or local area. The noble Baroness asked how many commons were still disputed. Very few commons remain disputed—that is to say, their registrations remain provisional. Some are in south Wales, where a local Act requires the registers to be reconstituted, but we are not aware of a significant number elsewhere. The noble Baroness also asked, quite fairly, what additional work and costs there would be for local authorities. There will be some additional costs, but people will need to pay fees for amendments to the registers and so many functions will be self-financing. The noble Baroness and other noble Lords expressed their worries about over-regulation as a result of the Bill and commented on the publishing of draft regulations before the Committee stage. I was careful to say in my opening speech that I gave an undertaking to publish a draft specimen order establishing a commons association under Part 2. I do not propose to publish draft regulations under Part 1, as they will be more or less routine regulations covering such matters as the form of an application and the persons to be notified. We expect to consult on such regulations following Royal Assent. Is this over-regulation? We believe that it is not. There is widespread support among interested parties for an effective registration scheme, and that can be achieved only if changes affecting the registers are notified. The noble Baroness, Lady Miller, asked whether the objectives of commons associations were too narrow. No doubt, we shall consider the matter again. Our objective has always been to allow those with common rights to develop more effective and sustainable agriculture management practices on commons. Broadening their purpose would require the involvement of a wide range of other interests, which would make common rights holders less likely to form associations. If they do not form associations, it will be more difficult for them to achieve that sustainable agricultural use of commons. I was asked by noble Lords what the Government were doing about unclaimed common land. The Bill re-enacts existing measures to enable local authorities to act to protect common land with no known owner. We are considering what further provisions could be brought forward in Committee to improve the management of unclaimed common land. The noble Lord, Lord Walpole, asked about the impact that the Bill would have on Travellers. It will not alter the current legislation in place for landowners to obtain possession of their land where trespassers have set up unlawful settlements. Clause 43 also re-enacts provisions to enable local authorities to act to protect common land where there is no known owner. My noble friend Lord Clark of Windermere asked about charitable bodies taking enforcement action against illegal works on commons. We will look at the issue further. As my noble friend said, at present Clause 39(3) allows only a local authority or a person with rights of access to take such enforcement action. The noble Lord, Lord Chorley, and my noble friend Lord Haworth asked about local authorities having a duty to protect common land. We do not believe that it would be appropriate to impose such a duty on local authorities. They should be able to exercise their discretion and take into account all relevant factors in deciding whether to take enforcement action. The noble Lord, Lord Chorley, also asked about the national parks authorities and why they could act under Clause 44 on unauthorised agricultural activities but not under Clause 43 on unclaimed land. I am advised that the national parks authorities can act under Clause 43 and Clause 44. The power for a national parks authority to act under Clause 43 is apparently contained—I certainly would not have known this without advice—in Schedule 9 to the Environment Act 1995. I hope that the noble Lord is impressed by that. I wish that I could claim the credit. A number of noble Lords, particularly the noble   Baroness, Lady Miller, and the noble Lords, Lord   Cameron and Lord Livsey, asked about commons associations being able to deal with under-grazing as a result of common agricultural policy reforms. This is a real issue. We believe that the creation of commons associations will make it easier to enter common land into agri-environmental agreements. Those agreements will provide, we hope, financial support to achieve a wide range of environmental benefits. The noble Lord, Lord Cameron, asked about severance and made a point about Natural England, as did a number of other noble Lords. It is intended that   rights can continue to be acquired by nature conservation bodies in order to reduce grazing pressure on over-grazed commons. Commoners will decide whether they wish to sell those rights. As to why statutory commons associations are exempt, we are considering suggestions from some stakeholders that a statutory commons association should be empowered to sever rights and manage the rights itself, but I cannot offer a commitment at this stage. The noble Viscount, Lord Ullswater, referred to the prohibition on works under Part 3 of the Bill and asked whether they should not hinder management works. He also asked about the Secretary of State’s powers with regard to wind farms. The controls on works in the Bill essentially repeat the controls contained in the   1925 Act. It is not the intention that minor management works that do not prevent or impede access to the common should be covered by the consent regime. All applications to undertake works are considered on their individual merits. Clauses 36 and 37 ensure that all proposals will be carefully considered in accordance with the criteria set before any decision is reached. Planning permission will be required for major works such as a wind farm. Clauses 36 and 37 will introduce an extra control over works on common land. The noble Earl, Lord Caithness, asked a number of   pertinent questions. He asked whether commons associations would be formed if land owners or commoners opposed their creation. We do not believe that full support from all interests is necessary for the establishment of a commons association, but prior to establishing an association, the Secretary of State must consult local interests and can establish an association only where there is substantial support. An association is therefore unlikely to be established where there is significant opposition from key interests. If the vast majority of commoners on a common want to establish an association and the owner opposes it, our view is that the association may still be created. The noble Earl asked why the Bill did not allow for the correction of mistakes and fraudulent excessive registrations of rights under the 1965 Act. We have listened to what interested parties have said about that and, as I said in my opening speech, we recognise that a number of rights registered in the 1960s were exaggerated or inflated. However, in common with most stakeholders, we believe that we have to move on from there and that re-opening the registrations all these years later will not be helpful in achieving better management. I was asked how the rights of owners would be dealt with in any association. All the major interests in a common will be represented on the governing body of the association. An association can manage only agricultural activities on a common. That does not mean that it can always override the rights of landowners. Our intention is for the establishment order to determine the procedure for obtaining consent and specifically to identify where, for what activities and from whom consent is required. The noble Lord, Lord Rotherwick, asked about the funding for new agri-environment schemes. Such projects on common land can be accommodated in the recently launched higher-level schemes. I dare say that we will hear more about that. The noble Lord, Lord Inglewood, asked about severance being allowed in the parish. Clause 9(5) enables regulations to prescribe exceptions to the general prohibition. We will consult on whether exceptions such as the ones mentioned by the noble Lord might be allowed in particular areas, especially where such practices have been long accepted. I look forward to talking to the noble Lord about that issue. That is the best that I can do in answering the questions. I shall finish by saying that everyone who has spoken recognises the importance of commons. Sometimes it is said that common land is an ancient institution, older than Parliament itself. It is certainly an important part of our national heritage. It is valued for many reasons, not least for agriculture, public access, landscape and nature conservation. The prospect of potwalloping with the noble Baroness, Lady Miller, is exciting, perhaps even more so than blegging with the noble Lord, Lord Greaves. I do not know whether, even after all these years, the noble Lord could be arrested for the theft of, I believe, raspberries, which he admitted.