Commons Bill [HL]

My Lords, we can always live in hope. Amendments Nos. 29, 30 and 31 would remove the power for Natural England and the Countryside Council for Wales to acquire rights of common by severance. These amendments are now old friends. Such was the concern of the House at the powers in the Bill at introduction that we brought forward amendments on Report specifically to constrain the exercise of those powers. Those amendments are now reflected in paragraph 1(2) and (3) of the new schedule and require notice to be given in advance of the powers being used. Effectively, we have introduced a requirement to consult. Let me remind the House that the vendor of rights acquired under paragraph 1 must be a willing party. There are no powers in the Bill to require such rights to be sold. Where a sale takes place, the rights will cease to be attached to the land and will instead be held by the commons association, Natural England or the Countryside Council ““in gross””, although any of these bodies may subsequently reattach the rights to other land under Clause 10. It is not possible under paragraph 1 to sever any part of the land comprising the common or to cause any part of the common to cease to be available for the exercise of rights of common. I have often heard arguments that these powers are not needed or will be abused, and that we face problems of under-grazing, not over-grazing. If that is correct—noble Lords will forgive me if I do not sign up to that this afternoon; we have had a friendly exchange about the position over the course of the past few months—then the powers will not be used and commoners have nothing to fear. But if over-grazing does continue to be a problem, we would be foolish to throw out the only tool that can guarantee reduced grazing activity on the common, provided that there are vendors willing to sell. In relation to the Countryside Council for Wales and the points put to me by my noble friend, we do not expect the CCW or Natural England to exercise the rights they have acquired and we see no difficulty in reconciling the holding of rights with their statutory functions. Both organisations can and do own land for    their statutory purposes. There is nothing incompatible about their owning rights of common. But at the risk of repeating myself, we do not envisage this happening very often. Again, English Nature does not normally acquire rights in order to extinguish them, rather it holds on to them to prevent them being exercised. Where a commoner voluntarily sells his rights, it must be reasonable to assume that he believes the purchase price more than offsets any future loss of income. We believe that that should be a calculation for the commoner to make. It should not be for government to say, ““The vendor cannot be trusted to make the decision””. Amendments Nos. 32, 33 and 34 would effectively remove the powers for commons associations to regulate the temporary letting of rights of common at a local level by making rules for that purpose. We see these powers as enabling local management by the local interests. We are a little surprised that the noble Lord, Lord Livsey, is opposed to that, given that he is himself a great localist. We believe that where a commons association exists, it should have powers to manage the temporary letting of rights rather than having to subscribe to national rules made all those miles away, whether in London or in Cardiff. Paragraph 2(3) specifically provides that local rules are to take precedence over national regulations, a point of particular concern to the noble Baroness, Lady Byford, in Grand Committee. We would resist the amendments. Amendment No. 35 takes us to the root of the Government’s amendments in this group. It would leave out from government Amendment No. 28 the power to enable the permanent severance of rights by order. I hope that the noble Lord, Lord Livsey, will feel able to support our amendments in this direction. I had hoped that we might achieve support for these compromise measures across the House. Moreover, the first suggestions made by the noble Lord, Lord Inglewood, on this were strongly supported by the Federation of Cumbria Commoners, among others. Let me make one last attempt to reassure the noble Lord that paragraph 3 of the new schedule does not overturn the old order represented by the prohibition on severance in Clause 9, which is the main part of the Bill. That prohibition remains our, and most stakeholders’, clear goal. Paragraph 3 is a reserve power only, enabling targeted exceptions after appropriate consultation. Like the noble Lord, Lord Inglewood, we have taken the long view and decided that it would be sensible to have these powers available. That does not mean we intend to use them, and I repeat that we have no plans to do so. If we do, the strong likelihood is that the initiative for an order will come from the commoners themselves. That is only right because the commoners would be those most affected. I am sure the noble Lord would support the making of an order for which the commoners themselves had lobbied. There is little I can say today about the defence and support for Dartmoor of the noble Lord, Lord Tyler—which was backed up by the noble Duke—except to acknowledge the success of the Dartmoor Commoners Council and the fact that it has played a part in some of our thinking on the Bill. I do not wish to exaggerate the point—I am sure the noble Lord would not wish to either—but certainly it has been a factor. I can go so far as to say that we will look into the matter, although I cannot give any commitment. As always, the noble Duke has been extremely thorough in the way he has examined the amendments because there appears to be an error, with the word ““that”” appearing twice in paragraph 3(4) of the new schedule. I congratulate him and thank him for his thoroughness. Having said that, I am not sure that I can answer his other questions here and now except on the issue of whether there is a requirement for a commons association to be notified of severance of right. A commons association must consent to a severance by virtue, I am advised, of paragraph 1(4). I have spoken to Amendment No. 3, which I have moved.