Commons Bill [HL]

moved Amendment No. 3:"Page 5, line 9, at end insert—" ““(   )   where the severance is authorised by or under Schedule (Authorised severance); or”” The noble Lord said: My Lords, this group contains a whole series of government amendments. I shall speak to and move Amendment No. 3 and speak to Amendments Nos. 4, 5, 6, 10, 11, 25, 26, 27 and 28. Then, with the leave of the House, I shall sit down so that noble Lords can speak to their amendments in the group and then I shall attempt to respond. These amendments give effect to our undertaking on Report to bring forward amendments to enable the Secretary of State to prescribe for permanent severance of rights of common. First, I should explain the structure of the amendments. In seeking to add to Clause 9 to provide for permanent severance by order, we have run up against the capacity of that clause to absorb further provisions. I hope noble Lords agree. It already takes up two pages of the Bill and has 16 subsections. We propose the introduction of a new schedule to be placed before the existing Schedule 1 to accommodate the three classes of exception to the prohibition on severance which remains the core purpose of Clause 9. Last week, I wrote to noble Lords including an analysis of changes to the text of Clause 9, which I hope has been helpful. I draw attention particularly to the new schedule, which is contained in Amendment No. 28. Proposed new paragraph 1 now contains the existing exceptions in Clause 9(3) to (7) to enable the severance of rights in favour of Natural England, the Countryside Council for Wales and commons associations, with some minor and consequential drafting amendments. On Report, I agreed to consider the then Amendment No. 9, tabled by the noble Lord, Lord Greaves, so that where Natural England or the Countryside Council for Wales gives notice to the landowner and any commons association of its intention to acquire rights of common by severance, that body should have regard to representations received from the bodies to which notice is given. We gave further thought to that matter and our conclusion is that an amendment to impose such a duty would, in effect, be redundant because—I can assure the noble Lord of this—the public law inevitably requires those bodies to have regard to any such representations received in response to the notice given. I hope that putting that remark on the record today puts that matter beyond doubt. Paragraph 2 of the proposed new schedule repeats the existing provisions in subsections (8) to (11) to confer powers to enable the temporary letting or leasing of rights of common. The only substantive change is that these powers are now to be exercised by order instead of regulation. Paragraph 3 of the proposed new schedule contains our provision enabling permanent severance. It is worth repeating myself on this matter. Noble Lords will know that these amendments follow from the debate on an amendment tabled by the noble Lord, Lord Inglewood, who, again, I am afraid is not well enough to be with us today. We all wish him a speedy recovery. He said that there was merit in enabling some limited provision in legislation for permanent exceptions to the prohibition on severance. In making those remarks I believe he relied heavily on his Cumbrian background. He said that the Bill is,"““to set the framework for the administration of common land in Britain for the next 40 years””," and to have such provisions on the statute book,"““would be a good thing””.—[Official Report, 28/11/05; cols. 28–29.]" In agreeing to bring forward such amendments, I said—and I repeat—that the power would be a reserved power. That remains the basis of our thinking. We do not plan to make many orders under proposed new paragraph 3—indeed we do not plan to make any orders at all—but if these amendments are accepted, the power will be available if circumstances change and a good case can be made for them. Noble Lords will have noted that paragraph 3(4) of the proposed new schedule requires that an order must provide for the consent of the owner of a common to be obtained to any authorised act of permanent severance. I believe that that fulfils the term of the compromise that I signalled on Report. I hope noble Lords accept that. We have had some indication that there may be room to refine the terms of this condition, and we are open to discussion even as the Bill moves to another place. While we may look for a consensus on an alternative form of words, we think it right that this should be the default position in this amendment. Proposed new paragraph 3(7) enables an order to provide that a severance may take place only so that the right is transferred to another commoner and that, in such a case, the order may require the severed right to be registered as attached to that commoner’s own holding in order for the severance to be effective. That option will be available to the national authority, and picks up a condition which was present in the amendment put forward by the noble Lord, Lord Inglewood. We are simply providing for the possibility, without committing to the particular outcome. There are various other government amendments in this group. With the leave of the House, I will not dwell on them. They are essentially paving and consequential amendments and if they raise any particular questions in noble Lords’ minds—frankly, I hope they do not—I shall do my best to respond. I beg to move.