Commons Bill [HL]

My Lords, I shall respond as briefly as I can. This is an important topic and it has arisen in a number of ways during the course of proceedings on the Bill—at Second Reading and in Committee too. Clause 27 sets out the procedure for establishment of a commons association. It requires the national authority to be satisfied that there is substantial support for making an order, while having particular regard to representations from three categories of persons: first, landowners and others who have a legal interest in the common; secondly, common rights holders; and thirdly, persons with statutory functions relating to the maintenance or management of the common. These are all persons with a direct interest in the common, either through ownership, a property right, or statutory functions relating to the land. We do not think local authority support is required as they do not have rights in the land, nor the necessary level of interest in the land necessarily for their concerns to be given particular priority. We have received consistent support for our approach to the procedure for establishment of an association from a wide range of interests. I know that the House will forgive me if I quote from the recent National Farmer’s Union parliamentary briefing, which I am sure has wide circulation. The briefing states:"““The minister can hear any representations on the subject, including the views of local councillors, but—in our view rightly—is obliged to have particular regard under subsection (5) to those with an interest in the land, to those who have rights of common, and to persons who have statutory functions concerned with the maintenance and management of the land. We are content that as drafted the Bill strikes the correct balance””." It appears that the support we have for our approach to establishing a commons association—as set out in Clause 27—is both substantial and powerful. That does not mean to say that we are right, but it is substantial and powerful. Noble Lords will be surprised to hear that we agree with the NFU here. There is nothing to prevent local authorities making representations about a draft order, but we do not believe their majority support should be the determining factor in deciding whether an association should be established. Local councillors are unlikely to have rights in the common and their knowledge and understanding of commons management may be low—certainly when I was a local authority councillor my knowledge and understanding of commons management was very low indeed. I hope that it is slightly different now, but I am not sure. This amendment would effectively remove the most important people from the decision making procedure—those with a direct interest in terms of rights or ownership. These are the interests that will operate the association. Majority support from local councillors might appear a good way of ensuring a democratic decision but such support will be worthless if the owner and the common right holders are not supportive. There may be situations where local authorities have a real interest in a common; for example, they may undertake management activities on an unclaimed common or be involved in a scheme of management under the Commons Act 1899. In such a situation, the views of a local authority would undoubtedly be given particular weight. But, even here, management of the common will require more than the support of local councillors. Reliance on majority support from one body of persons would not be enough to guarantee the effectiveness of the association where there are a number of different interests. We are aware that measuring the level of support for the establishment of a commons association will sometimes not be an easy task. Ensuring that there is majority support—which implies an objective, measurable test of support—will be almost impossible because rights in common land vary in value and nature, and are shared between different users. Each common will have a unique set of active users and inactive or dormant holders of rights. When considering the establishment of a commons association, a series of questions must be answered: for example, who in the local area should be involved in deciding whether a commons association is to be established? To some extent, the functions to be given to the commons association may determine how some of those questions are answered. We could say, on a common that is agriculturally active, that only active graziers should be involved in deciding whether to establish an association and support measured through a majority vote. But that would remove any representation from the owner or other legal interests who share the common and it is seldom straightforward to differentiate between active and inactive users of a common. I could give further examples but I do not think that I need to. There are other important interests in a common, such as the owner, whose views may be overridden if some measure of majority support is used to establish an association. Even if the owner is agriculturally active, with a high level of interest in managing the common, he could always be outnumbered by those holding common rights. In another situation, the owner may actively oppose the formation of an association despite overwhelming support from the rights holders. The views of the owner and other minority interests could be lost if the criteria for deciding whether to establish an association is based on the concept of majority support from any particular category of interest in a common. What is required is a judgment, a weighing of the facts in each individual case—an examination of which interests support the establishment of an association, what functions they want to give that body, which interests oppose establishment and why. We should not expect overwhelming support for a commons association as there will always be those who oppose such a body—those who believe that they gain from having an unconstrained ““freedom in the commons”” to do as they like. We should expect to create associations in the face of some opposition. This is why we have decided that the criterion for establishing an association should be ““substantial support””. The implication of using that term is that the support is more than sufficient to do the job. It is existing, not illusory, support. It is not a bare majority, but it does not have to be total or overwhelming support; it allows for some opposition to occur. It allows the strength of arguments to be gauged, both in support and in opposition to an association. Such evidence can then be used in the decision or used to modify the draft establishment order in some way. I was going to finish by quoting the National Farmers’ Union, but I shall not.