Commons Bill [HL]

My Lords, I begin by speaking to Amendment No. 38. I start by making plain that it is not necessary, because what the noble Lord seeks can already be done under Clause 32(2)(a) through the power to enter into agreements. The list of functions in subsection (3) is only illustrative of those that can be given to a commons association under subsection (1) of this clause, which must relate to the management of agricultural activities, vegetation, or common rights. We have already made it clear that the preparation and adoption of management plans is the sort of thing that can be undertaken under Clause 32 as an ancillary power. We see such plans more as an ancillary matter, which will help an association to carry out its functions conferred in its establishment order. Indeed, the amendment suggests that a management plan might be such an ancillary function, as it is to be drawn up to assist in an application for agri-environment funding. We remain unable to see any need to add that function to the illustrative list of functions in subsection (3). On Amendment No. 39, subsection (3)(b) provides that one of the functions that can be conferred on a commons association is the power to make rules relating to the leasing or licensing of rights of common. Those rules can relate only to rights of common. The making of such a rule would not—indeed it could not—affect an owner’s right to lease or license the surplus grazing on a common. We are aware of situations where owners or their tenants have registered their right to the surplus grazing on a common in the commons register. Registration means that such a right has now become a right of common. That is the conclusive effect of Section 10 of the Commons Registration Act 1965. In that situation such a right wouldbecome subject to the rule-making power in subsection (3)(b). We certainly recognise the importance of an owner’s entitlement to lease out or license his right to use the surplus. It would be open to the owner of a registered right to surrender it under Clause 13, thereby releasing the right back into the surplus on the common. Although a registered right of common would be susceptible to rules made under subsection (3)(b), the leasing or licensing of the surplus would not. The establishment of commons associations requires substantial support. The status quo is maintained regarding the owner’s consent for others doing things on the land, such as managing the vegetation by means other than grazing. Leasing or licensing of the owner’s surplus is not caught by the commons association’s rules for commoners. An establishment order could also make special provision where the owner’s surplus has been registered as a right of common. That might take the form of giving an association a rule-making power, which would include some protection for owners who have that problem. Of course, it will be appreciated that the making of any particular rule will have to be agreed to by those managing the association, so there would have to be consensus for such a provision to be made. The exercise of rights of common or exercise of rights to use the surplus—in other words the actual use of rights by any person—would still be subject to the rules made by the association. It is only the leasing and licensing of such rights that would not be subject to any rules made under subsection (3)(b). A provision would have to be made in an establishment order to deal with the issue. I hope that the noble Earl will not press his amendment when we reach it.