Commons Bill [HL]

We are still discussing the role of commons associations in Part 2. Commons associations are of course a new form of managing body for common land. I would like to go into the history of this, but I heard the Lord Chairman’s strictures when we started our proceedings this afternoon. Let me move forward. By the time we entered the Common Market in 1973 and the common agricultural policy was introduced, we saw the hastening decline that led to problems such as over-grazing with which we are still grappling today. We are now dealing with a changed approach to agricultural policy, which in some places is leading to under-grazing on commons. We have all become aware of the special nature conservation value of common land, much of which is now designated as sites of special scientific interest. However, the potential pressures on common land continue to grow as the demand for land increases for recreation purposes, for new development, as sites for wind turbines and as key areas for managing water catchments and so forth. Yet the vast majority of commons have no formal management arrangements. Sometimes grazing activity is influenced by voluntary commons associations which may or may not operate on democratic lines, while sometimes the owner may take a strong interest. But often there is no management system of any kind. We are now putting into place the means by which agricultural activity and the key resource, the vegetation, can be effectively managed. We are providing for flexible, modern organisations with statutory powers that can be adapted to the circumstances on any common or set of commons. We are providing for all agricultural interests to be represented in an association, which is by no means the case with some voluntary associations, and for decisions to be made by majority voting mechanisms. In order to achieve this, we must confer some functions and powers on these new bodies. Their key functions will relate to the management of agricultural activities, the management of vegetation and the management of rights of common. In order to carry out these activities, commons associations will need to make rules, and Clause 30(3) specifically highlights the making of rules as a vital function of any association. To be effective, the rules must be able to control agricultural activities undertaken by any person on the common, to control the leasing and the licensing of the rights of common and, where necessary, to control the use of rights. Commons associations must be given those powers to make rules to promote further improvement in agricultural and vegetation management. That will help to meet the target of getting 95 per cent of sites of special scientific interest into favourable condition by 2010. Without such rule-making powers, statutory commons associations would be no more effective than any voluntary commoners’ association, which are unable to impose their management objectives on anyone. There would be no point in any group of commoners expending time and effort to establish a commons association under the Bill. I turn to the amendments tabled by the noble Baroness. Amendment No. 149 would effectively stifle a key role of a commons association, which is to make rules about the agricultural use of the land for which it is established. The primary aim of enabling the establishment of commons associations is to allow common rights holders and others engaged in agricultural activity on common land to regulate themselves to benefit from the improved management that will result. Rules made by an association regarding agriculture, for example, must be binding on all those using the common for agricultural activities, including the owner of the common. Otherwise, the association will be ineffective in achieving its aims of improved management. For example, an association entering into an agri-environment agreement requiring the maintenance of a specific level of grazing over a number of years will need to be able to make rules that regulate the activities of all those grazing on a common. Otherwise, the commoners might regulate their own stock numbers only to see the owner turn out additional animals to take advantage of the temporary surplus in grazing capacity. That does not mean that the rights of others in a common can be ignored. I point out that it is by no means inevitable that all the functions listed in government Amendment No. 142 , which we debated last week, will be given to every association. The national authority can determine which functions should be conferred, based on the circumstances of each association. For example, where it is not appropriate for a commons association to have a rule-making power on management of vegetation, it need not be given one. A number of safeguards are also built into the rule-making procedures of a commons association. First, rules will be made by majority voting and local interests may propose at the establishment order stage the size of the majority required for the adoption of any particular rule or class of rules. Secondly, any rule creating a criminal offence will require approval by the Secretary of State. Thirdly, the national authority may revoke any rule made by an association if it is deficient or harmful in some way. Finally, the Secretary of State may impose more rigorous rule-making procedures in the establishment order if there are good reasons for that. The aim of rule-making for a commons association is to control and regulate the exercise of rights on a common. So, for example, it may control the stocking densities of livestock on a common, or determine the periods when animals must be cleared from the common. Those rules must therefore apply to all those using the common for such purposes, including landowners and other interests, such as sporting interests. I emphasise that that does not mean that associations can impose arbitrary rules that require actions causing harm to the interests of others. Rules will be made within the limited framework imposed by the national authority. Making rules binding on all those involved in management of vegetation and agricultural activities on a common is an essential function for any commons association that hopes to improve the management of a common. We believe that sufficient safeguards are built into the rule-making procedures to protect minority interests within an association and the broader public interests in the common that may be affected by any rules adopted. Amendment No. 151 leaves out any reference to the function of making rules relating to leasing and licensing of rights of common. The list of functions in subsection (3) is only illustrative of the sort of functions that can be given to an association, so the removal of any specific item from the list would not necessarily prevent an association from being given such a function if the national authority felt that it was necessary for the effective operation of the association. A prime function of commons associations will be to manage grazing. For that management to be effective, the association must be able to make rules about leasing and licensing of rights of commons. On some commons, inactive rights holders lease out their rights either to commoners on the same common or to outsiders who seek additional grazing. It is important for an association to be able to manage this activity in order to control both the level of grazing and the hefting practices that exist on a common. Mention has been made of the impact of a rule on the owner’s use of his surplus grazing. I should stress that this rule-making power extends only to making rules about rights of common and not to other grazing rights, such as the owner’s surplus grazing. We do not see it as necessary or appropriate for the commons association to interfere in the licensing of the owner’s surplus, although, as I have said, the association may well wish to regulate the use of the surplus if, for example, there is an over-grazing problem on the common. I think that that makes sense. Amendment No. 162 would remove the provision which enables rules made by a commons association to have the effect of limiting or imposing conditions on the exercise of rights of common and the rights to use surplus grazing on a common. These powers are fundamental to the ability of a commons association effectively to manage grazing on a common. An association will need to be able to make rules capable of controlling grazing by any person on a common, whether they are a commoner, an owner, a tenant of the owner or a licensee. Subsection (4)(a) certainly restricts the powers of the soil owner to use the surplus grazing as he sees fit. I should point out that our Amendment No. 163, which we shall come to shortly, clarifies the situation with respect to management of surplus grazing. That amendment makes clear that the rules made by a commons association may limit or impose conditions on the exercise of rights, not the rights themselves, to use the surplus grazing, just as they will apply to the exercise of commons rights, too—not the rights, but the exercise of those common rights. But the rules will not be able to control or influence the management of the surplus by the owner in terms of his ability to lease or to let as he wishes. That is one of the issues that the noble Baroness was concerned about. Identifying whether there is a surplus on the common is a matter more of art than science. We certainly believe that it is possible that grazing numbers on a common may need to be reduced, even though the owner is grazing the surplus. Some commons which have been overgrazed need dramatic, if temporary, reductions in grazing numbers to enable recovery of the vegetation and would wish to ensure that associations are empowered to reduce both the commoners’ and the owner’s grazing activity for such a reason. That is all I wish to say in reply to these probing amendments tabled by the noble Baroness. Perhaps I may also refer to our new consent clause—Amendment No. 182A—which I hope we will reach shortly, if I do not speak at such length. That will require a landowner’s consent for any activity taken on the land where no rights of common exist to do that without consent. We shall hear more about that later.