Commons Bill [HL]

– in the House of Lords at 3:07 pm on 18 January 2006.

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Photo of Lord Grocott Lord Grocott Chief Whip (House of Lords), HM Household, Captain of the Honourable Corps of Gentlemen-at-Arms (HM Household) (Chief Whip, House of Lords) 3:07, 18 January 2006

My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Commons Bill, have consented to place their Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Bill read a third time.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

moved Amendment No. 1:

Page 2, line 41, at end insert—

"(4) There shall be a duty on the Secretary of State and the Minister in the National Assembly for Wales to fund the costs of commons registration authorities."

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

My Lords, the amendment addresses the need to persuade the Secretary of State and the Minister in the Welsh Assembly Government to fund the administration costs of commons registration authorities. I tabled this amendment because there is great concern among commons registration authorities—that is, in the local authorities—that this legislation will create a considerable amount of work. The work will include computerised mapping, the translation to computers of maps from 1905, which, in some local authorities, mostly demarcate the well known boundaries of commons in their locality. It is painstaking work that requires a great deal of accuracy. The level of human resources needed to carry out the time-consuming work of implementing electronic registers—it is certainly not required of commons registration authorities in all local authorities—is expensive. The legislation must be effective and effectively run. Our question is whether the Government want the legislation to be successful. It will not be unless resources are adequate to cover a massive land area of England and Wales—in the area that I come from, one-third of the land area.

The subject was raised in Committee and, as I am sure the Minister knows, in a meeting between commons registration authorities and Defra in the first half of 2005, in Cheltenham. The information from that meeting was that around £100,000 would be available. In the comments made to me, given the magnitude of the task that I described, that sum was felt to be wholly inadequate to meet the job that the commons registration authorities will have as a result of the legislation. I think that I have made the point very clearly on this amendment; therefore, I beg to move.

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, should the Minister in his benevolence decide that he accepts this amendment, I hope that he will explain to the House and to everyone outside on what justification the taxpayer should have to fork out yet again to help the farmers to set up something that might be in their own interests.

Photo of Lord Williams of Elvel Lord Williams of Elvel Labour

My Lords, this matter was discussed in Committee, as the noble Lord, Lord Livsey, said, and I thought that we had got through that discussion, so I hope that the Minister will resist the amendment—on the grounds, as the noble Earl, Lord Caithness, said, that this matter should be resolved by those interested in the business and not at the expense of the taxpayer or the council tax payer.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, I have sympathy with the amendment because whether—following on from the comments of the noble Lord, Lord Williams of Elvel—it is the taxpayer in paying central taxes or us paying taxes at a local level, the cost must be met by someone. The matter was raised at earlier stages of consideration, and it was suggested to the noble Lord that he put it to a vote at that time, so I understand why he has come back with it.

This is an important point; the process will cost money and the Government know that it will cost money. In the response that I had on Report the noble Baroness, Lady Farrington, said that the funding,

"will . . . be provided, at least initially, on a targeted basis".—[Hansard, 28/11/05; col. 58.]

Have the Government given any more thought to that? Have they decided how it will be targeted, or will that be left to each individual authority to decide when they bring it forward? No real assurance was given—and I do not believe that we have received a follow-up letter—on what the Government have in mind about how it would be organised.

The figure of £100,000 is fairly near what was quoted; if you divide that among the various local authorities, it is peanuts in certain areas—and obviously not applicable in others. Although the noble Lord had a slightly rough ride on Report, this question should be answered, and at this stage we have not had it answered. I hope that the Minister will be able to do that.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, the amendment would require the Government to fund the costs of commons registration authorities in meeting the additional burdens imposed by Part 1. Our position on funding the costs of Part 1 is quite clear, but let me briefly repeat our case.

The Government are committed to funding new burdens placed on local authorities. So it is that local authorities will be provided with funding from the Government for any new burdens arising under this Bill, including those relating to updating the registers, in so far as they are not met by funding from other sources, such as fees. Funding for Welsh local authorities will of course be a matter for the National Assembly.

When the Bill merely retains existing duties on commons registration authorities, arising under the Commons Registration Act 1965, we will not be providing additional funding. In particular, that includes the requirement on authorities to keep commons registers. But Defra will provide additional funding to authorities for new or enhanced duties that arise from the Bill.

Once the registers are up to date, it will be incumbent on authorities and those with an interest in common land to fulfil their statutory responsibilities. People will generally need to pay fees for amendments to the registers, and authorities must keep the registers up to date. Funding will not be provided for those activities that are funded through fees, nor for applications to register new town or village greens which are already funded other than to the extent that new regulations may place new burdens on registration authorities. Where fees are waived or reduced in the public interest, then that too will need to be taken into account.

The costs of bringing the registers up to date are expected to vary greatly between local authorities, but the overall costs are not expected to be high. The regulatory impact assessment contains estimates of new costs and copies have been placed in the Library of the House. The assessment will be updated in the usual way at Royal Assent.

We expect to roll out the implementation of Part 1 by beginning with a pilot scheme in a small number of registration authority areas. The identification of those pilot areas, and the amount of the required funding, will be considered as part of that pilot programme and in association with the Local Government Association.

We propose to target resources initially, so that additional funding hits the mark. The pilot programme will also enable us to refine the question of costs, and seek agreement on a formula which can be applied across English commons registration authorities.

Finally, we will also be working with registration authorities over the months ahead to establish the new association of commons registration officers on a sound footing. That will provide an important medium for communication between officers, Defra and the Welsh Assembly Government, and I am pleased to report that there is already real enthusiasm among registration officers to take this project forward. I see a valuable role for the association in helping us to implement the Bill in a practical and cost-effective manner.

I was asked why the taxpayer should have to pay. The Bill reflects the fact that there is a public interest in the management of common land and in ensuring that the registers are brought up to date. As I say, the cost arising from any new aspects of the Bill will be met from both user fees and public funding.

Photo of Lord Tyler Lord Tyler Liberal Democrat 3:15, 18 January 2006

My Lords, I am very grateful to the Minister. Before he sits down, will he indicate whether he supports the thesis advanced by the noble Earl, Lord Caithness, that only those who benefit from a statutory duty undertaken by a local authority should contribute to the cost of carrying out that duty? That would imply, of course, that only old people should pay for old people's services and that only those with children should pay for education.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, I certainly do not want to get too philosophical today, but I think that the final thing that I said answers that question: the Bill reflects the fact that there is a public interest in the management of common land, and that is how we justify paying for new things that the registration authority has to do out of public funds.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

My Lords, I thank the Minister for that response. I am sure that the amendment will be noted in the other place. However, the Minister's response, which referred to new burdens and existing ones which originate in the 1965 Act, needs to be quantified. I was very pleased to hear the Minister address the question of pursuing pilot areas and that there will be a review. I trust that, in looking at the pilot areas and recording what goes on, a very clear definition of new burdens and existing ones will emerge, and that that will assist Defra and the Welsh Assembly Government to decide what level of funding is appropriate given the new burdens that will result from this legislation.

I was very pleased to hear the Minister refer to the association of commons registration officers. There is enthusiasm for that association and I am sure that it will produce greater cohesion among different commons registration authorities, which vary in their practices and their effectiveness. I hope that that measure will improve the situation over time.

In view of what the Minister has said, particularly that the system will be piloted—I would be very interested indeed to see the outcome of that—I beg leave to withdraw Amendment No. 1.

Amendment, by leave, withdrawn.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

moved Amendment No. 2:

After Clause 4, insert the following new clause—

"COMMONS ADJUDICATION

(1) There shall be a body of adjudicators known as Commons Inspectors.

(2) The Secretary of State shall appoint—

(a) persons who have a 7 year legal qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41) (judicial appointments); and

(b) persons with such other expertise as he considers appropriate, to be Commons Inspectors.

(3) The Commons Inspectors shall undertake the functions of the Commons Commissioners established under the Commons Registration Act 1965 (c. 64).

(4) The functions of the Commons Inspectors shall also include—

(a) vesting unclaimed common land;

(b) conducting town and village green inquiries;

(c) resolving problems of amendments to commons registers.

(5) The Secretary of State shall confer such other functions upon the Commons Inspectors as he considers appropriate.

(6) The Secretary of State shall pay to the Commons Inspectors such fees, travelling allowances and other allowances as he may determine."

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

My Lords, Amendment No. 2 was debated on Report. Before I go any further, I thank the Minister for his letters on this, and in particular I thank him for allowing in his amendment, which is grouped with this one, regulations to be drawn up in the schedule that will indicate that there will be some basis for appointing people to adjudicate on many of the difficulties that accrue from registration of commons and that area.

It is important to compare Amendment No. 2 with the Minister's Amendments Nos. 12 and 13 and the two different approaches. The commons adjudication body under my amendment would have people with legal qualifications, as noble Lords can read in my proposed subsection (2). I will refer to that shortly. The main difference between this amendment and that tabled on Report is proposed subsection (4):

"The functions of the Commons Inspectors shall also include . . . vesting unclaimed common land . . . conducting town and village green inquiries . . . resolving problems of amendments to commons registers".

The amendment would apply to Part 1. There are issues on which I have sought legal advice. In comparison, government Amendments Nos. 12 and 13 relate to Clauses 16 and 24. Clause 24 refers to,

"sections 6 to 9, 12 and 13", which are all in Part 1. It also refers to the amendment of registers and applications. It covers the creation of rights of common, variation, apportionment, severance, transfers, surrender and extinguishment. It also addresses the ability of persons to discharge functions of a commons registration authority, all under Part 1, wholly with the registration of common rights—that is important.

However, there are other matters relating to inspection outside Part 1 that must be addressed and which require legal expertise. In our proposed subsection (4), the amendment of registers is addressed in paragraph (c), but the missing link, especially in comparison with the commons commissioners, which were created in the 1965 Act, is:

"vesting unclaimed common land . . . conducting town and village green inquiries".

Both those are outside the scope of government Amendments Nos. 12 and 13; none the less they are very necessary functions for legally qualified commons inspectors. In our view, it is essential that they have legal qualifications in the area of vesting unclaimed common land and conducting town and village green inquiries. Can the Minister prove that his amendment, under regulations, will address subsections (4)(a) and (4)(b) of my amendment, as far as functions are concerned?

I wish to make some other points, but I will have that opportunity in response to what the Minister says, so I beg to move.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, I thank the noble Lord for raising this matter and I have a couple of questions. In an earlier debate, the Minister in response said that the independent persons who were taking forward this work would have worked on other parts of the Bill. Having re-read the Official Report, my understanding of what he said was that some would have legal expertise and some would have other attributes, not necessarily legal ones. Have the Government given any more thought to that?

Also, my understanding from the previous debate was that that would come forward in the form of regulation and not in the Bill. The noble Baroness who will respond will remember the concern expressed on that issue by the noble Countess, Lady Mar, who is unable to be here today because she is not well—we all send our wishes that she is better soon—and my noble friend Lord Jopling. Have the Government given any more thought to that, too?

Photo of Lord Greaves Lord Greaves Spokesperson in the Lords, Environment, Food & Rural Affairs

My Lords, I support my noble friend's amendment and I wish to address the two government amendments in this group, which have not yet been spoken to.

Amendments Nos. 12 and 13, as my noble friend said, make it much clearer that there will be a core of inspectors or such people who will be trained and have expertise in commons registration. That is welcome and, while the Government's new proposals do not go as far as my noble friend and I would like, they are a step forward. Amendment No. 13 performs another useful function. When we were debating Clause 24 in Committee and what will now become Clause 24(6), I was concerned that the powers were too all-embracing and would effectively allow the appropriate national authority or the Government to close down the commons registration authority and take over all its functions. I was assured that that was not the case and that could not be read into it.

The new wording has clarified the issue and certainly satisfies me that no one in future can look at this matter and think that it would have the unfortunate effect that I suspected. The amendment's more felicitous wording is much clearer and for that small reason I welcome it.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I, too, send good wishes to the noble Countess, Lady Mar, for a speedy recovery, as will the whole House.

I shall first speak to government Amendments Nos. 12 and 13. During earlier stages of the Bill, we had a number of debates about the role of the commons commissioners in the implementation of the Bill.

In Grand Committee, my noble friend Lord Bach said:

"We think it unnecessary to retain the commons commissioners as a dedicated tribunal as before, but we also expect to appoint persons of similar experience to decide some cases which arise under Part 1".—[Official Report, 25/10/05; col. GC 276.]

Amendment No. 13 enables us to appoint and retain persons of experience to form a panel—I will go no further than to call it a panel at this stage—and we will of course consult at a later date on whether regulations might confer a particular name on the panel. Once suitable people have been appointed to the panel, the amendment enables its members to be appointed to discharge the functions of a commons registration authority in any particular case.

In answer to the noble Lord, Lord Livsey, it is entirely possible under the government amendments that inquiries into the registration of greens could be referred to an inspector, appointed from a panel. That could happen, for example, where the registration authority required an independent person to deal with a very complex application. I hope that that gives the noble Lord and other noble Lords a degree of reassurance.

Paragraph (b) in Amendment No. 13 leaves open who may do the appointing. For example, it may be possible for a registration authority to select a panel member when it identifies a conflict of interest which would prevent it determining an application itself. Alternatively, there may be an administrative unit attached to the panel which will assign panel members on demand. I hope that your Lordships will agree that these matters are also right for consultation at a later date.

As the noble Lord, Lord Greaves, recognised, Amendment No. 12 retains the existing powers for the national authority to appoint persons to discharge any of its own functions in relation to orders for deregistration and exchange under Clauses 16 and 17. The amendment does not require individual appointments to be made from a panel, but regulations could nevertheless be made that would enable appointments from a panel. We believe it sensible to retain more streamlined provision in relation to the national authority's functions, because there is the possibility that either the Secretary of State or the National Assembly may wish to delegate their decision-making powers to a separate body entirely.

As your Lordships have recognised, Amendment No. 2 would go a little further than the government amendments to which I am speaking. However, as I have heard, noble Lords acknowledge that we have tried to meet them halfway. The noble Lord, Lord Livsey, has great regard for the work of the commons commissioners, and I respect that. We know that the commissioners' work is valued by many commoners, because of their experience and independence. That is precisely why we have tabled the government amendments: to ensure that we have the powers that we shall need to set up a panel of independent, experienced inspectors to advise on or determine applications that are too complex or inappropriate for the commons registration authority to deal with.

The noble Baroness, Lady Byford, asked whether lawyers could be appointed under the government amendments. Of course, the national authority would have discretion to appoint persons with a wide range of qualifications and experience, including lawyers where appropriate. We made it plain on Report that we would need to establish a panel, so to that extent we are in great agreement. We believe it appropriate that we should do that by regulations. It should not surprise noble Lords that we believe that it is unnecessary to stipulate in the Bill the kind of qualifications required by commons inspectors or the functions that they should be assigned.

Comparison has been made—by the noble Lord, Lord Greaves, I think—with the Commons Registration Act 1965, which sets out in some detail the functions and status of commons commissioners. To a degree, we are bound by the inflexibility of that Act to the present day. We do not wish to repeat the mistakes that were made due to that inflexibility, so I hope that noble Lords will support the Government's amendments to Clause 24 when we come to them.

I hope that your Lordships will forgive me a small aside. I am not totally surprised that, if the noble Lord, Lord Livsey, sought the advice of lawyers, he was told that lawyers were probably the best and even possibly the only people who could do the job.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs 3:30, 18 January 2006

My Lords, will just one panel cover the whole of England? How do the Government view this panel operating? Alternatively, will there be one panel per region? It would help the House to know that.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, there would be one panel, from which people could be drawn. Obviously, they could move, but I think that we all know that, in practice, people are drawn into the region of which they have their greatest knowledge. However, as I said, there would be one panel.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

My Lords, I thank the Minister for that response. Of course we accept what she says about the panel and the way that it would function. But there are important points of principle and obviously we beg to differ on whether this matter should be made statutory or just put in regulations. One critical factor is the independence of the adjudicators and their ability to look at this issue in a focused and objective way. I note what the Minister said about lawyers. I do not have a remit for them but I listen to what they say and try to evaluate it.

Some issues of principle should be considered. In particular, Part 1 deals with problems of registration and correction and matters of that kind. But in the case, for example, of the vesting of unclaimed common land, we are not talking about grazing rights but about ownership. Therefore, strictly speaking, that is not part of Part 1. I merely put that to the Minister because the commons commissioners could operate over a very wide field. At present, it is a function of the commons commissioners, but they are being wiped out as a result of the cancellation of the Commons Registration Act 1965.

So far as concerns subsection (4)(b) in my amendment, about 35 to 40 town and village green inquiries go on every year. They are run by local authorities and, if the Bill stands as it is, sometimes expensive private barristers will have to be engaged and decisions taken, often because there will be no statutory force. In fact, in strict terms of law, I am informed that this measure will not stand up at all well, as apparently will be the case in terms of the early part of the amendment of which I spoke.

So the matter about which I have just spoken—that is, the fact that there is some doubt—will be corrected by the insertion of subsection (4)(b) in our amendment as legally qualified inspectors would conduct the inquiries and would come to conclusions which, I am informed, might stand up better than the way that the Bill is drafted at present. I am sure that the Minister will have taken note of that and, indeed, as she says—and I agree—the Government have come at least halfway. I am sure that people will have noted the contents of this debate and, in those terms, I wish—

Photo of Lord Williams of Elvel Lord Williams of Elvel Labour

My Lords, before the noble Lord decides what he wishes to do with this amendment, he said that it was a matter of principle. If it is a matter of principle, then presumably—we are, after all, at Third Reading—he will ask the opinion of the House.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

My Lords, I know the noble Lord quite well and I think that he makes an important point. But I am sure he will agree that at Third Reading one also has to exercise a degree of judgment and, in that context, I beg leave to withdraw the amendment.

Photo of Lord Brabazon of Tara Lord Brabazon of Tara Chairman of Committees, House of Lords, Deputy Speaker (Lords)

My Lords, is it your Lordships' pleasure that this amendment be withdrawn?

Photo of Lord Brabazon of Tara Lord Brabazon of Tara Chairman of Committees, House of Lords, Deputy Speaker (Lords)

My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content".

Noble Lords:

Not content.

Clause 9 [Severance]:

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

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—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".—[Hansard, 28/11/05; cols. 28–29.]

In agreeing to bring forward such amendments, I said—and I repeat—that the power would be a reserve 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.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs 3:45, 18 January 2006

My Lords, connected with this series of government amendments are our Amendments Nos. 29 to 35. We are particularly anxious that this series of government amendments—we need to make it clear that our amendments amend the government amendments—come under a section in the Bill dealing with the right of common being severed permanently, which also needs to be made clear. We are quite satisfied with sub-paragraph (1) in Amendment No. 28, which indicates that the right of common that,

"applies . . . on or after the day on which this Schedule comes into force be severed permanently from the land to which it is attached by being transferred on its own to—

(a) any commons association established for the land".

We are happy with that, but not with rights of common being severed permanently in sub-paragraph (1)(b) to Natural England, and in sub-paragraph (1)(c) to the Countryside Council for Wales.

We need to ask why the schedule proposed by the Minister allows the rights of common to be severed permanently to these bodies. Sub-paragraph (1)(a), as I have said, is surely correct, and perhaps would have been better still if it had said "the relevant commons association", because that is probably the right place for rights of common to be transferred to.

Our consequential amendments therefore seek to remove both Natural England and the Countryside Council for Wales from the Government's new schedule. All evidence points to both Natural England's predecessor and the Countryside Council for Wales obtaining common rights only to, in some cases, extinguish them. That is a significant thing which is happening now, and could happen much more in the future.

As an agriculturalist, I worry that the economic viability of many hill and upland family farms is dependent on the common rights for grazing on the adjoining common. This is very common in Wales, the south-west, the Pennines and the north of England. An 80 to 150-acre holding, for example, could easily have anything from 250 to 500 ewes on the common. For some rights to be extinguished on that common could easily make some family farm units economically unviable. The subsequent loss of income could be terminal for those agricultural businesses. As a consequence, depopulation could occur as young family members leave the land. That is the road to destroying the social infrastructure of the uplands. I am putting just one side of the argument at the moment, and I shall come to the other side in a minute.

There may be good environmental reasons why government bodies—that is, Natural England and CCW—would wish to extinguish grazing rights, but that must never be at the cost of families being forced, perhaps inadvertently, to leave the land. In most places, overgrazing is receding and, as we agreed in Committee, undergrazing is a more likely scenario in the next 20 years, particularly with the introduction of single farm payments. Indeed, taking account of the fact that in most of these areas—certainly it is true in Wales—the average age of an upland farmer is 55, such people are not likely to be striving hard to alter their farming systems radically. In these circumstances, the commons association must surely be the best custodian to which to transfer the common rights, as it has a key role in securing the balance of grazing rights in relation to the local community's interests and its economic well-being. It is also very important that the commons association is able to secure a balance of environmental management agreements—very often made with Natural England, as it will be in future, and the Countryside Council for Wales—giving advice which, by agreement, can be carried out without those two bodies having permanently severed grazing rights to do with what they wish.

Our amendments are constructive to the well-being of the uplands. We do not want to see holdings broken up and farmhouses possibly sold off. That is not in the interest of rural areas.

Photo of Earl Peel Earl Peel Conservative

My Lords, before I make my few remarks on Amendment No. 28, I should just like to say that the point made by the noble Lord, Lord Livsey, is well made. It would be a tragedy if we saw any of the environmental agencies moving in and acquiring rights at the expense of local farmers. I do not know whether the noble Lord is in receipt of the letter sent by Sir Martin Doughty, the chairman of English Nature, in which he made it clear—and I am sure that he is right—that such circumstances would prevail only in very rare cases when there was an overriding conservation need. I had expressed exactly the same view as the noble Lord. So having seen that correspondence, I feel reasonably happy that that will be the purpose of any intervention by Natural England or CCW.

I shall speak briefly to Amendment No. 28. The Minister will know that I was extremely concerned about the amendment moved by my noble friend Lord Inglewood on the basis that I thought that it was likely to drive a coach and horses through one of the major pillars of the Bill on the question of severance. However, I think that the whole House, myself included, eventually acknowledged that the noble Lord had a good point. I am truly delighted that a sensible compromise has been reached in order to secure the concerns of my noble friend Lord Inglewood and those of us who were concerned that the amendment would have devastating consequences. I therefore take this opportunity to thank the Minister and his officials for having reached this compromise. We now have something that is really workable and my noble friend's concerns have been dealt with.

I realise that there is concern in certain quarters that the owner can exercise a veto. But I have always believed that this is essential because on many commons the owner has a very active part in the management. I am afraid that history has shown that where rights have been severed and farmers have acquired disproportionate rights to the size of the land they are farming, considerable environmental degradation can result.

I welcome the fact that the Minister says that special cases for such severance will occur only in very rare circumstances. I really do believe that we have achieved something which at one stage I thought was impossible: a genuine compromise that meets the wishes of all of us on this very important matter.

Photo of Lord Williams of Elvel Lord Williams of Elvel Labour

My Lords, I have a great deal of sympathy with what the noble Lord, Lord Livsey, says in relation to his Amendment No. 29, which I think we are debating at the moment. I have sympathies simply because, as he rightly points out, the Countryside Council for Wales as an owner of common rights sits untidily in the upland farms of which the noble Lord and I have some knowledge and experience. I cannot speak about Natural England, because I know nothing about it. However, if the Countryside Council for Wales, a statutory advisory body advising the Welsh Assembly Government, suddenly becomes an owner of common rights, how will that fit in with the countryside council roles or indeed the role of Natural England? Are there any guidelines that my noble friend might like to give to the Countryside Council of Wales in the operation of its new obligations?

Photo of Lord Tyler Lord Tyler Liberal Democrat

My Lords, I share the concerns of the noble Lord, Lord Williams, and I support the amendments to which my noble friend has referred. I have another problem. I hope that the Minister will be able to address it and clarify the position that would arise if his Amendment No. 28, the new schedule, is passed with the other amendments to Clause 9. Like other members including the noble Earl, Lord Peel, I accept that the Government have gone a long way to meeting the concerns expressed on Report.

I think that we are in the territory of unintended consequences when it comes to Dartmoor. I hope that the Minister will be able to give some assurances and clarification on that. As I understand it, the way in which the Bill has developed in your Lordships' House means that two matters have been added to the powers of a statutory association in Clause 9, which the Dartmoor Commoners Council does not at present possess. They are the power to veto the admittedly limited severance of a right of common from the land to which it has been historically attached, with which we are concerned in these amendments; and the power to receive and thus own rights so severed, to which reference has already been made.

I think that the Minister will acknowledge that this Bill owes a great deal to the Dartmoor Commons Act 1985. We have had the benefit, if you like, of a pilot project in one part of the country, and useful lessons have been learnt from it. But the prohibition of severance in that Act, which has applied for 20 years without challenge or any problems arising of which I or the commoners' council are aware, should be taken into account.

The Bill as it stands would, under Schedule 5, as I understand it, repeal Section 8 of the Dartmoor Commons Act 1985, which would mean, uniquely, that Dartmoor would not have the same powers as we are giving to the new commons associations. That is clearly an extraordinary situation. It really is rather odd that there is a very successful pilot project that everybody on all sides of your Lordships' House recognises as such, on which we are basing the experience for this Bill, and yet we are preventing that particular commoners council from doing the job that we believe others should be doing.

This grievance is perceived by the council. I understand that it has been notified to the noble Lord's department. I hope that, maybe either today in your Lordships' House or when the Bill goes to the other place, there may be an opportunity to redress it. Clearly, there are different ways that that might be undertaken. It could be dealt with in the new schedule in government Amendment No. 28, which we are now debating. I very much understand the references to regulations, which we are not going to see just yet, but perhaps it can be dealt with in those. There could be a positive reference to the Dartmoor Commons Act 1985 at some point. That would now have to be done in the other place. That Act could be amended in a schedule to the Bill. Clause 9 could include some reference to a commons association to include the Dartmoor Commoners Council. However, it seems to me—although I am no expert and I hope that the Minister will be able to respond positively—that the most practical way to deal with the matter may be under regulation, which would mean that we do not have to deal with it right now.

I very much hope that the Minister will be able to respond positively and acknowledge the concerns of those who have so effectively used the Dartmoor Act and have therefore provided so much experience and expertise that has so well informed this debate.

Photo of The Duke of Montrose The Duke of Montrose Deputy Chief Whip, Whips, Shadow Minister (Environment, Food & Rural Affairs (Also In Scotland Team), Environment, Food & Rural Affairs, Shadow Minister, Scotland 4:00, 18 January 2006

My Lords, first, we thank the Minister for all his co-operation in what he has produced, especially on behalf of my noble friend Lord Inglewood, whose points he took on board with such detailed care.

On Amendment No. 29, tabled by the noble Lord, Lord Livsey, on the question of which public body should take over, I can see his point that if Natural England or any other body took over a small part of a common and then extinguished the rights, that would be an absolute disaster. If it succeeded in gaining severance of all rights, we might consider whether it should be able to distinguish those rights, but there is a danger of piecemeal severance of a common going to Natural England or some such body.

To return to the point made by the noble Lord, Lord Tyler, only last night, we received a letter from Professor Mercer, chairman of the Dartmoor Commoners Council. Despite its late arrival, I am sure that noble Lords will appreciate the importance of his contribution. As the noble Lord, Lord Tyler, told the House, Professor Mercer states:

"the present bill, and the work which led up to it . . . has fed in part from the Dartmoor Commons Act 1985 and our experience since then".

However, it seems that in changing our attitude to severance, there has been an oversight that he feels that we would want to correct. The letter continues:

"The repeal of our Section 8 diminishes the protection of the historic process of commons management on Dartmoor, and yet any other common or block of commons will have—provided an association is formed—greater protection under the present Bill. Its association can veto the only exception to general severance in favour of a third party, and can ensure that right grazing levels are sustained by having at its disposal rights to deploy (directly or by lease or license) on the common in question".

It seems that we have omitted to provide for the fact that Dartmoor will not have an association but retain its council.

Unfortunately, this letter came to my attention too late for us to table amendments through the usual channels. However, I would be grateful if noble Lords would allow me to read out Professor Mercer's brief suggestions, so that we all have food for thought. Professor Mercer suggests four options:

"(a) a positive reference to the Dartmoor Commons Act (1985) and its Commoners Council rather than the lone negative implied by repeal, perhaps by a 'miscellaneous' clause or in a schedule which accorded statutory association status to the Council, after all Clause 32.2.e already gives the national authority necessary power over the Council's processes

(b) amend the 1985 Act, in this Bill's Schedule 4, by inserting in its Schedule 2 Section 1 a sentence applying all the functions and obligations of a statutory Commons Association (2006) to the Council

(c) apply Clause 9 of this Bill to the 1985 Act with a rider that all references to a commons association should be read as including the Dartmoor Commoners Council

(d) if it is feasible by Regulation give this Council the powers of a statutory association, and get the minister to commit to that in debate".

He also says that he would be grateful for our help and that he is asking the noble Lord, Lord Tyler, for his help too, as noble Lords will have heard today.

The amendments in this group, particularly the amendment moved by the Minister, are a very good example of how the Government are listening, but it seems that they have the capability of listening only by enabling all sorts of things to be done by regulation. So even if we are burying Edward I and his Commons Act 1285, Henry I and his heirs are still rubbing their hands with a certain amount of glee.

In paragraph 1(2)(a) and (b) of the new schedule proposed in government Amendment No. 28, there is no measure to ensure that persons who wish to sever a right of common have a duty to inform the commons association as well as the owner of the land, although subparagraph (2)(b) perhaps implies that. Is that not required, or is it simply not clear enough to me? On the question of temporary severance and leasing, will the Minister clarify the meaning of the phrase "framed by reference"? Does that mean that the provisions and rules referred to will be constrained by their relevance to particular land or descriptions of land, or to descriptions of persons to whom the rights of common may be leased or licensed? If so, what effect will that have?

Perhaps this is superfluous, but I wonder whether there is a typing error in paragraph 3(4) of the proposed new schedule. At the end of the first line of the paragraph there seems to be an extra "that". It says that it,

"must include provision securing that that the owner of any land over which a right of common is exercisable".

I would be grateful if the Minister would clarify those points.

{**17**}

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, I am grateful to noble Lords who have spoken in this debate on the amendments in the name of the noble Lord, Lord Livsey. The noble Lord has tabled a number of amendments to our proposed schedule set out in government Amendment No. 28. I shall deal with the amendments in three groups. Before doing so, I thank noble Lords, particularly the noble Earl, Lord Peel, for his very kind remarks about the compromise that has been achieved and for his praise for the officials behind the Bill. It is not very often in this House or, dare I say, in another place that departmental officials get the praise they deserve. As regards this Bill, they have led Ministers down a path of compromise, which has been appropriate. Particularly on this vexed subject of severance they have played a great part in effecting compromise.

Photo of Earl Peel Earl Peel Conservative

My Lords, will they create a similar response through the course of the NERC Bill?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

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 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.

Photo of Lord Williams of Elvel Lord Williams of Elvel Labour

My Lords, I thought that we were discussing the amendment of the noble Lord, Lord Livsey, Amendment No. 29.

Photo of Baroness Lockwood Baroness Lockwood Labour

My Lords, we are discussing at the moment Amendment No. 3.

On Question, amendment agreed to.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy) 4:15, 18 January 2006

moved Amendments Nos. 4 to 6:

Page 5, line 10, leave out from "Act" to end of line 20 on page 6.

Page 6, line 40, leave out "is" and insert "and Schedule (Authorised severance) shall be"

Page 6, line 40, leave out "regulations under subsection (8)(a)" and insert "an order under paragraph 2 of that Schedule"

On Question, amendments agreed to.

Clause 15 [Registration of Greens]:

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

moved Amendment No. 7:

Page 9, line 2, leave out "the relevant period" and insert "twelve months of the date upon which the landowner posted a notice prohibiting the use of the land for sports and pastimes"

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, in moving Amendment No. 7, I shall speak also to Amendment No. 8. This clause will come into force in accordance with the provisions made by order by the appropriate national authority. We are still waiting for some aspects of the Animal Health Act—which we will be discussing later—to come into being on which we will have no influence once this Bill has left the House. There are matters within the Bill which will have a bearing upon our discussions.

It is possible that the owner of land might decide—perhaps as a consequence of practical experience of the single farm payment—to sell up. As part of the preparation for the sale, he might have to erect a notice clarifying that the use of a particular field is permissive and that permission is now being withdrawn. Under this clause, unless the Secretary of State had already brought it into force, he would then have to wait for five years to complete the sale even though the notice was not put up until after the Bill had become law. This is a little technical but I hope the Minister is following me.

On the other hand, had the clause already been brought into force, he would have to wait a mere two years. I wonder how many people would consider it reasonable to be required to wait for two years between deciding to sell their house and being able to put up a "For Sale" notice. If this clause is brought into law, any number of farmers whose land now adjoins a conurbation could be faced with that problem.

The situation is made worse by the recent changes to the common agricultural policy. There are farmers who are faced with a drop in their income sufficient to wipe out a fairly fragile profit, especially if there is any delay in the new single farm payments, which we will no doubt debate on my Question next week. The process of applying to register land as a town or village green is not specified in the Bill, but if it follows the procedure for establishing rights of way, the application will be made considerably in advance of any decision. Moreover, that decision process will involve both the registration authority and those who are making the application. It is quite reasonable to set a limit of 12 months for the filing of an application. That is the thrust of these two amendments.

Rather like the matter relating to the Dartmoor Commoners Council, another issue was raised with me only yesterday. I apologise to the Minister. I hope that he will not mind my sharing it with the House, even though I understand that it may not be possible to do anything until the Bill passes to the Commons. I hope the House will forgive me for introducing an additional angle to the debate on this part of the Bill.

The matter is, I think, of great interest to us all. It is not intended to slow up proceedings, but to ensure that all possible areas of debate are covered before we pass our hard work over to the Commons. The much debated Clause 15 has thrown up yet another problem. It has come to my attention that a retrospective effect of Clause 15(6)(a) could be an unintended loophole. This ties in with our amendments. If land had been used for a 20-year period and its use ceased five years before the Act, under Clause 15(6)(a), houses which had already been built would be in line for demolition. I shall describe a situation in which this could apply.

A building society could have fenced a site on commencement of construction works, with the appropriate planning permission, in 2002, and commenced building work. Under the current law, the development could have been completed. I have been made aware of developments where this is the case. The case of which I am aware was challenged by protesters under existing common law, but the challenge was overturned by a public inquiry conducted by a QC and supported by a High Court ruling. Yet I understand that, under Clause 15(6), both those respected and official rulings could be overturned by an oversight. In spite of its comprehensive defeat, the protest against the development would be renewable under this new legislation. I am sure that that is not what is intended. Those who were against the development would have a window until 2007 to attempt to overturn the development or part of the proposed development. It seems that Defra is aware of this problem. A letter which I believe was dated 10 January 2006—I have unfortunately left my copy in my office—has instructed local councils to withhold planning applications on the assumption that village green applications might be made. Surely this is not the operation of a government department through the usual channels. I also refer the Minister to the recent European Court ruling in the case of Pye v UK 2005, in which an attempt by the Government retrospectively to vary a law was found to contradict European rulings on human rights.

I apologise to the House for the complexity of the matter, but as it is directly relevant to this part of the Bill, it is important that it is in Hansard. When the matter moves to the Commons, perhaps Ministers and the department will look into it further. I do not expect the Minister to have clear knowledge on the issue. I beg to move.

Photo of Lord Renton Lord Renton Conservative

My Lords, it is surely significant that at the Third Reading of this important Bill, the Opposition Front Bench—my noble friends Lady Byford and the Duke of Montrose—have moved only three amendments, which are amendments to Clause 15. I think that they are very important.

As the clause stands, it imposes too long a period before change can be made when change might well need to be made. That would lead to stagnation, which we must avoid. So I warmly support Amendments Nos. 7 and 8. We shall come separately to Amendment No. 9, which is slightly different in that it refers to charity. But I hope that the Government will keep an open mind on the strong case that my noble friend Lady Byford has put.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Environment, Food & Rural Affairs

My Lords, unfortunately, in this instance we cannot support the first amendment to which the noble Baroness spoke; but the perhaps more substantial point that she raised at length, which was really quite complicated—at this stage I would not attempt to interpret what she said, let alone produce a reaction to it—will be a very substantial point for the Commons. The issue of greens and open spaces and the rights of developers, and the conflict between the two, is something that we touched on in debating CROW. We came back to it in the first stage of the Bill, and unfortunately we have left it unresolved, but given the good job that this House has done on the rest of the Bill it is perhaps fair to leave the Commons a very interesting point to debate.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, I agree with everything that the noble Baroness has just said. Perhaps I may say to the noble Baroness, Lady Byford, that we will study the details of her remarks and that I shall write to her about the application of Clause 15(6) in such a case. I thank her for her comments this afternoon. The matter may very well raise its head in another place, as the noble Baroness, Lady Miller, said.

Amendments Nos. 7 and 8 relate to a case in which 20 years' recreational use as of right by local inhabitants has already taken place, but is then ended before someone can apply to register the land as a green. Clause 15(3) sets out a "period of grace" for applications; the period of grace is normally to be two years, but there is a transitional provision that when "as of right" use was ended before the clause comes into effect, it is to be five years.

We resist the literal effect of the amendments, for the same reason that we did so at Report. We do not think that a year is long enough; there needs to be a fair opportunity for an application to be made to register land as a green if it has been used in a qualifying way for at least 20 years, but its use is then brought into question. Once that happens, there is much to do, as I argued at Report, before it is possible to submit a viable application on behalf of local people to register the land as a green—such as those local people having to find out about that area of law, often from scratch. They must do their research, discover that the registration system exists; get hold of guidance material, investigate the detailed criteria for registration; and assess whether they are likely to have a case to make that meets the stringent criteria for registration. They must then find witnesses, and so on.

As I said in the previous debate, one year may in some cases be long enough for all that to happen, but in others it may not, so our common land policy statement in 2002 said that we were minded to adopt the two-year period of grace that is now provided for. The transitional five-year period of grace reflects the one on which we originally consulted in 2000. It is needed only in a case where "as of right" use has ended before this clause even comes into effect. Until that happens, something as harmless-looking as a "welcome" notice can end even a very lengthy period of "as of right" use. But once Clause 15 takes effect, a challenge to longstanding "as of right" use will have to be overt if it is to be effective: the prohibition notice spoken of in the amendment comes to mind as one means. Once that is the case, the two-year period of grace will be sufficient.

Either way, I remind the House that the period of grace is a maximum period. There is nothing to stop people applying sooner, and they would be well advised not to leave doing so until the last moment. It is a matter of balance. We think that we have it right. A limited period of grace for application is provided. Failure to register land within that period means the opportunity to register is lost. That is very different from the customary law position under which evidence of any 20 years' qualifying use established land permanently as a green, even if the use ended a very long time ago.

I shall deal with two of the points that the noble Baroness made. It was suggested that applications to register greens might be made speculatively before any proof of use was gathered, and might take a long time to determine. We agree that these issues have to some extent been a problem to date because of the many uncertainties of greens registration law as it stands. One of the key aims of Clause 15 is to reduce these difficulties.

Providing a limited period of grace—so long as it remains adequate—will take the current panic out of the situation. It will enable local people to assess whether they are likely to be able to make a viable case for registration. Knee-jerk applications should become less prevalent than they have been to date. By simplifying and clarifying the current law we should make it considerably more straightforward for applications to be determined within a reasonable period on the facts and evidence. Of course, proper consideration must continue to be given to the merits of each case. But we would be disappointed if the average determination time did not substantially shrink as a result of this clause.

Finally, there was the argument that if a landowner who has tolerated over 20 years' recreational use of a piece of land "as of right" now wishes to end such use, he faces a quandary. Should he end it now—making the period of grace for application under subsection (6)(a) five years from the date of doing so? Or should he wait for commencement—which would make the period of grace two years from the date of doing so—but without any certainty as to how soon Clause 15 will be commenced?

In the end, I am afraid that is a decision that only the landowner can make. But I can assure the House that we will give high priority to ensuring early commencement of Clause 15. This is an important set of provisions and we need to bring them into effect at the earliest opportunity. I hope that the noble Baroness will withdraw the amendment.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs 4:30, 18 January 2006

My Lords, I am very grateful to the Minister. I certainly will pass on the relevant information relating to the item that I added. It was extremely important to bring it to the notice of the House. I apologise for its complexity. I assure noble Lords that I have loads more papers which are even more complex. I hope that I explained the matter in a fairly informal and straightforward manner.

The Minister said that this is a matter of balance and that he thought the Government had it right. I understand that the noble Baroness, Lady Miller of Chilthorne Domer, cannot support my Amendment No. 7, but I am very grateful to my noble friend Lord Renton for saying that he thinks we have the matter right. I believe that we have it right. If the Minister does not think that there have been problems to date, or he is hoping not to have problems with this measure, he ought to reflect on the difficulties that the Natural Environment and Rural Communities Bill—which we shall shortly consider—will pose given the huge number of problems that have been raised with regard to rights of way. Having the shorter time period would be a much better and wiser move. Although I am grateful for the Minister's kind words, I do not agree with him and I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 84; Not-Contents, 203

Division number 1 Private Parking: Ports and Trading Estates — Commons Bill [HL]

Aye: 82 Members of the House of Lords

No: 201 Members of the House of Lords

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 8 not moved.]

Photo of The Duke of Montrose The Duke of Montrose Deputy Chief Whip, Whips, Shadow Minister (Environment, Food & Rural Affairs (Also In Scotland Team), Environment, Food & Rural Affairs, Shadow Minister, Scotland

My Lords, the main impetus behind the amendment is to be found in the Minister's words on 28 November at col. 50. Our amendment at that time was an attempt to ensure that the Bill contained clear restrictions on the eligibility of urban land for registration as a town green. The National Playing Fields Association is concerned that the Minister's reply to our case might be interpreted to mean that a valid application to create a town green or a playing field could rest on whether the field gates had been kept locked. Most playing fields are not locked and this amendment is an attempt to protect them from people who might prefer to have a common rather than playing fields and pitches. Exempting charity-owned land would be such a protection.

Some of your Lordships may have come across this potential area of confusion. It is surely our duty as legislators to remove areas of confusion where possible. The situation is illustrated in the points that we have been given by the National Playing Fields Association, which I hope your Lordships will allow me to outline in full. The association has told us that it,

"is aware of a number of recreational fields registered as charities which have become registered as village greens under the existing 1965 Act at a later date . . . There is a strong argument, backed up informally by views received from the Legal Department of the Charity Commission, that this is inappropriate and capable of challenge in law . . . This is because the enjoyment of rights under a charitable trust is not 'as of right' of the inhabitants . . . The enjoyment of rights under a public trust is different from the enjoyment of rights directly enforceable through current commons legislation simply by virtue of being an inhabitant of an area . . . It would therefore be helpful if there could be a Ministerial statement making clear whether there is any intended exemption for charitable recreational land . . . Should this not be the case, it would still be helpful for the Government to provide a statement of guidance on this matter, hopefully supporting the informal view of the Charity Commission, which is consistent with advice previously given to the NPFA by our own legal advisor".

Our amendment is designed to provide clarity in this area. I beg to move.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Environment, Food & Rural Affairs

My Lords, the noble Duke raises a very interesting point, which I think is worthy of further discussion. There is a difference between a public, national charity such as the one that he quoted and a charity that is created, for example, by an individual in relation to a small community. Such a charity might indeed be a disadvantage to that community, as the community could end up having fewer rights to its town or village green than it had before the charity was created.

This is an interesting point, and I regret that this is not Committee stage so that we could have more discussion about it. I can see that in terms of a charity existing as of this moment, there may be some fair points, as the noble Duke quoted from the charity commissioners. However, without exploring the pros and cons more fully at this stage, I would feel very wary about the amendment. The noble Duke has raised a very valid issue which needs to be discussed further in the other place.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, the noble Duke may not be surprised to hear that we do not agree that charity land should be exempted from registration as a green, but I thank him for raising this issue and it is important that it should be debated.

The land would not fall to be registered in the first place unless for at least 20 years a significant number of local inhabitants had used it as of right for lawful sports and pastimes. As we have said in this House, that is a tough test. There may be no regular and discernible pattern of recreational use at all, or there may have been such a pattern but simple notices may have been in place at entry points to the effect that recreational users enter and use the land only with the charity's permission. In such circumstances, a successful claim could not arise.

On the other hand, if the local inhabitants have not only been using charity land freely over the years for their recreation but have been doing so without force, secrecy or permission, they are likely to have already formed the basis of an application to register the land. We think that in such a case it would be wrong for us to remove the existing scope for registration of such land when we repeal the current provisions about greens registration in favour of this clause.

The other point that I want to make is that some pieces of land, including playing fields, will be owned by charities that may not be focused on preserving that land. A charity must be driven by its own charitable objects. It may decide that those are best met by releasing land for development and that it cannot give any special weight to any longstanding recreational use that local people may have made of the land in question. Exempting charity land from the scope for registration would remove the ability to protect land of this kind through the registration system.

Of course we understand the concern from charities—the noble Duke mentioned the National Playing Fields Association—that Clause 15 will impose significant new burdens on them in their capacity as landowners. In our view, that concern is misplaced. If such land has already received the necessary qualifying use, it would be wrong for this clause to exempt land from achieving registration. However, it must be said that in practice, so long as local people remain free to use land for lawful sports and pastimes and do not perceive any threat to such use, they are unlikely to seek to register the land as a green in the first place, even where it already has the qualifying use.

If, on the other hand, a qualifying pattern of recreational use has not yet been achieved, there are straightforward steps that a charity can take to prevent the land becoming registrable as a result of further use, if that is what it wants to do. For example, it can put up simple notices stating that recreational use takes place only by permission.

The clause will not make it necessary, as has been suggested, for a charity to stop local people using its land, or to lock gates every evening, to avoid the land becoming registrable. It is well established that recreational use that is expressly permissive cannot give rise to registration as a green.

The noble Duke mentioned the legal context of this issue. There is a school of thought among some lawyers that recreational use of land that directly reflects the landowner's charitable objects is, by definition, incapable of supporting any claim that the land was used "as of right". The argument runs that, necessarily, the recreational use in such a case takes place with the implied permission of the charity, acting under its charitable objects to make provision for recreation of this type, and is subject to whatever constraints the charity is empowered by its governing instruments to make on such use.

There is, in fact, no such generalised presumption. The Judicial Committee of your Lordships' House has made it clear—in the case of Beresford v Sunderland City Council, reported in 2004—that what matters when local inhabitants use land owned or managed by a body that has recreational functions, such as a local authority, is the nature of that use and whether the actions of the landowner during the period relied upon would have made them aware that their use took place by permission rather than "as of right". Mere good-natured tolerance of recreational use by local people will tend to support, rather than defeat, a claim that such use took place "as of right".

Whether the nature of the charity and the actions taken by it would be sufficient to defeat a claim of "as of right" use would entirely be a question of fact and evidence in each case. The fact that land happens to be in charitable ownership will often prove irrelevant when determining whether use has taken place "as of right".

Photo of The Duke of Montrose The Duke of Montrose Deputy Chief Whip, Whips, Shadow Minister (Environment, Food & Rural Affairs (Also In Scotland Team), Environment, Food & Rural Affairs, Shadow Minister, Scotland

My Lords, I am very grateful to the Minister for bringing these various legal positions to our attention. The issue now faced by these various charitable associations is quite a burdensome one. In urban areas, notices would have to be stuck up fairly regularly because they would not last very long. That is an additional burden on the charities that own those lands. One also hopes that it does not precipitate a great fashion in fencing off these places and having the gates open for only a limited time during the day, as that would reduce the charitable use of such land. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 [Applications etc]:

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

moved Amendments Nos. 10 to 13:

Page 14, line 37, leave out "9" and insert "8"

Page 14, line 37, at end insert—

"(aa) paragraph 1 or 3 of Schedule (Authorised severance), and"

Page 14, line 40, at end insert—

"(3A) Regulations under subsection (1) may include provision for the appropriate national authority to appoint a person to discharge any or all of its functions in relation to an application made to it under section 16." .

Page 15, line 19, leave out subsection (6) and insert—

"(6) Regulations under this section may include provision for—

(a) the appropriate national authority to appoint persons as eligible to discharge functions of a commons registration authority in relation to applications made to, or proposals made by, the commons registration authority; and

(b) the appointment of one or more of those persons to discharge functions of the commons registration authority in the case of any particular application or proposal."

On Question, amendments agreed to.

Clause 27 [Procedure for establishment]:

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

moved Amendment No. 14:

Page 16, line 33, leave out from "persons" to "land" and insert "having rights (other than rights of common) in relation to, or occupying"

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, Amendment No. 14 makes a minor change to the description of persons whose representations the national authority must have particular regard to in deciding whether to make an order establishing a commons association.

Clause 27(5)(a) refers to persons who have an interest in land, a point made by several noble Lords and by the noble Baroness, Lady Byford, at earlier stages. Our amendment would refer, instead, to persons who have rights in relation to land. The amendment ensures, first, that we achieve greater consistency with similar provisions in other clauses.

Secondly, the amendment removes the possibility of uncertainty about what is meant by an interest in land. Noble Lords on all sides of the House raised that question. Many people are interested—in the informal sense of the word—in how a common is managed or in using a common for some purpose. But these are not the sort of people to whom we think the national authority should have particular regard when deciding whether to establish a commons association. In our view, particular regard should be paid only to representations from those with legal rights in relation to a common, and that includes owners and those with other legal rights, such as sporting rights.

Subsection (5)(a) now clearly applies to those who either occupy the land or have rights in relation to it, other than those with rights of common; the latter are separately dealt with in subsection (5)(b). Of course, we still have subsection (5)(c), which ensures that particular regard is paid to representations from persons who have statutory functions relating to the maintenance or management of the land. I hope we have reassured noble Lords. I beg to move.

Photo of Lord Plumb Lord Plumb Conservative

My Lords, we have had a good and full explanation of this matter. Once we talk about rights, however—remembering what the Minister said earlier about my noble friend Lord Inglewood's contribution—we are taking the long view and therefore have to get this right.

There are three quite important reasons why I am concerned. First, the Bill, as named in this proposal, could discriminate against voluntary commons associations as it does away with the rules set up in 1965, which, in this context, have generally worked well. Secondly, a new Bill would be effective only for statutory associations, leaving a void between the two. Thirdly, the management of a particular common would be vested in a commons association.

Knowing many of the occupiers of common land for grazing animals, I think they would be left confused over identification. If there has to be a statutory body, surely it would appear that the voluntary commons association becomes totally disenfranchised, which could be significant in both monetary and administrative terms. The public interest in common land is growing, and there is a need for countervailing strengths to take care of those livestock areas.

This is, therefore, put clearly, a case of the voluntary versus the statutory instruments, and a matter of major concern to those who occupy common lands. I hope the Minister agrees that means can be found to accommodate voluntary organisations, perhaps to be affiliated to a commoners' federation or a forum, to act as an umbrella to take on the mantle of statutory commons associations, and operate within the parameters set by a national authority.

The issue should perhaps have been spotted earlier in the debate. I am sure that this was raised in different forms at Second Reading. The people concerned had perhaps not realised the difference between voluntary and statutory associations at that stage.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, unless inspiration comes to me, the noble Lord, Lord Plumb, is using his longer experience, and greater skill than I possess, to draw in issues which are rather wide of the point of this government amendment.

If a statutory association is sought, it is likely that the voluntary association would be seeking it. It is extremely unlikely, if a voluntary association exists, that it would not be involved in the process, because it will inevitably consist of the people with the interest—as defined by this government amendment—in the land concerned. On the narrow point of this amendment, therefore, I can reassure the noble Lord.

I will look at the slightly broader point of this amendment and, if necessary, write to the noble Lord if he has raised new points. I am sure, however, that he would not expect me to go into them at Third Reading.

Photo of Lord Plumb Lord Plumb Conservative

My Lords, I am grateful to the Minister. The reassurance is most acceptable.

On Question, amendment agreed to.

Clause 30 [Constitution: supplementary]:

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, this group of amendments again responds to concerns expressed in earlier debates by the noble Baroness, Lady Byford, this time about the nature of membership of a commons association.

A commons association established under Part 2 will consist of people appointed—through election or other means—as members of the governing body of the association. They will represent the different interests in the common. These members will make the rules, through majority voting, and all its executive decisions. The number of members in each association will vary, depending on how many commons are in the association, and the relative size and number of the different interests being represented.

In an association made up of only two or three commons, where only the landowner and common rights holders require representation, the members may number fewer than 10. In a large association covering many commons with many active and inactive rights holders, landowners and a range of other rights holders, there may be 20 to 30. For example, as the noble Lord, Lord Tyler, knows, the Dartmoor Commoners' Council consists of a minimum of 26 appointed members.

Most people who have rights in a common will therefore not actually be members of an association, but they will be participants in the sense that they will be eligible to appoint members to represent their interests in the association. I understand that noble Lords would like to see all the participants in the association—that is to say, the commoners, owners and other interest holders—described in the legislation as "members". But that could confuse people even more. Perhaps I may compare a commons association to a district council. The governing body comprises the elected members, who have been voted into office, whereas the participants in the election for the members of the district council are the residents of the council area. One would not expect the residents to be described as "members of Charnwood" or "members of Harborough"—the noble Baroness will understand better than most what I mean—because their qualification to vote depends solely on their residency within the district. In the same way, the qualification of participants to vote in an election to the commons association will depend solely on their status as commoners, owners or holders of other interests in the common. To call the participants "members" would imply that they had to do something to qualify; for example, that they had to complete an annual membership form. It would equally imply that the association could exclude from membership those with whom it fell out. So, on balance, we prefer the term "participants" as a more neutral and, indeed, inclusive expression.

Amendments Nos. 15 and 18 make clear that the standard constitution or the establishment order for an association can include terms for participation in an association as well as membership. This could include, for example, terms about participants' entitlement to elect members and to attend meetings. This draws a clear distinction. Amendment No. 19 is consequential.

I understand that this may not fully answer all concerns about the roles of participants and members in commons associations, and that we may not have got this quite right. So, as I indicated in my recent letter to noble Lords, we will continue to explore the issues surrounding the terminology used in Clause 30 with stakeholders and in another place. We would be grateful if the government amendments to which I have spoken are agreed today to take us through to another place.

Amendments Nos. 16 and 17 clarify that members of an association may be appointed to represent interests, without necessarily being elected. Where the number of individuals with a particular interest is small—for example, if there were only one or two landowners, or if there were no competition for a post—an election would not be feasible or necessary. These amendments allow members to be appointed through an agreed procedure that does not involve a vote. I stress that elections will be used where there is a sufficient number of persons to warrant such a process. This amendment merely enables the most appropriate method of appointing members to the governing body to be used.

Amendment No. 22 makes a minor change to commons associations' ancillary power to raise money through the payment of fees. I beg to move.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

My Lords, the Minister referred to a governing body. Was that in relation only to a statutory commons, or does it cover the voluntary sector?

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, I am grateful for the clarifications the noble Lord has introduced today. How many members make up the "sufficient" members to have a vote? Where will he draw the line? He talked about one or two landlords. Will it be up to the statutory commons association to decide whether it is an appointment system or a voting system, or will there be some regulation on this?

As the noble Lord will know, I dislike statutory commons associations. I have said that right from the beginning. I have not changed my view at all, having listened to his pleadings throughout the Bill. But I would like to thank him and his team for all they have done to try and accommodate our concerns and make the Bill more acceptable than it was when it was introduced.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, I thank the Minister for putting forward his amendments and, particularly, for saying that he recognises that there is a slight problem, and that the Government are willing to explore the issues when the Bill moves to another place.

This amendment is an attempt to meet our concerns, which the Minister has explained, about how to involve commoners in the association when the only members are the 10 or 12 elected or appointed persons who will run it. Again, that is a slight play on words. I should say, for those noble Lords who were not in our previous discussions, that before, anybody who was a member of an association would have regarded themselves as such a member; now, with what the Government propose, they will technically not be a member in that way. That is why we raised this issue before. The remaining government amendments to Clause 30 are all part of the same exercise.

In his letter of explanation the Minister stated that he would welcome comments on whether these five amendments,

"improve the understanding of how commons associations are intended to operate".

We are still uncomfortable with the terminology. We feel that where everyone is paying a fee or a subscription, either they should all be members or the management team should be a council or a board with no one classed as a member. I reiterate that today.

The type and scale of the confusion caused by the present wording has been demonstrated to me in respect of existing, small, voluntary commons associations—a matter which my noble friend Lord Plumb raised on the previous amendment. If they go down the statutory route, the money they will have to pay to support the costs of the association is likely to be larger than that indicated by the Minister on 30 November at col. 240. Unfortunately, there are areas of the country, particularly in Wales and the north of England, where commons frequently support only a few people.

Under the terms of the Bill, the 1965 Act will be repealed in its entirety, leaving the voluntary organisations, to which my noble friend referred earlier, totally without legal protection. A number of those likely to be affected in this way have worked out that they could apply to have a single commons association covering, for example, the whole of Wales—a very large area indeed. It would then consist of a board of 10 to 12 elected representatives, who would then mandate a council consisting of one person from each voluntary association. By their reasoning this would then bring each of the voluntary associations under the umbrella of the overarching statutory body. In return, the constituent commons would agree to abide by the rules set by the board for the conduct of commons' business.

The problem is that they cannot be sure that this suggestion would conform to the new law and, while I think it is eminently practical and a sensible way of avoiding the unpleasant black hole, I share their concern. The Minister has explained a little more in introducing the amendment today. Could he reassure the House that the Bill will allow a number of commoners to join together in a statutory association, and for a number of voluntary associations to federate under the umbrella of a single statutory association?

If I may digress for a moment, the difficulty is that many of the smaller, voluntary organisations have very limited fees and very limited money comes into the pot compared to a big, statutory association. They feel that those fees and the costs of having to have records, meetings and formal set-ups will rise considerably compared to their current costs. The idea of a small board and a large council covering a wide area is not new. I understand that the National Sheep Association is run very effectively by a board of 15 with a council of about 200.

My noble friend Lord Plumb tried to raise this point under the previous amendment. Unfortunately, it is typical that when people are considering legislation, they do not realise the implications for some smaller groups until it is almost too late. That is why the matter has been brought to the House at a very late date. The Minister assured us earlier that he is willing to explore the issues that we have raised, for which I am very grateful. I do not expect him to respond fully today, but it is essential that it is pursued when it goes to another place. There is a big difference between the larger voluntary associations, which may have sufficient fees coming in, and the very small ones, which, if they want to become an association, will have to conform to and fulfil the requirements laid down in the Bill, but will not have the funds to do so.

An overarching, umbrella organisation may solve some of the problems and concerns expressed by my noble friend Lord Caithness. The difficulty for those organisations is that, unless they become part of a statutory association, they will lose out on claiming some of the benefits of being under the umbrella. That is why I have taken a little time to explain the situation. I am grateful to the Minister for moving his amendment.

Photo of Lord Tyler Lord Tyler Liberal Democrat

My Lords, I endorse what the noble Baroness said about the two-level federal structure—if I dare use that expression in your Lordships' House—which applies in other parts of the country and works very well with smaller voluntary commons associations.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, I am grateful to all noble Lords who have taken part in this debate. We will take this back to think about it again; I am sure that the issues surrounding it will emerge in another place. The answer to the noble Lord, Lord Livsey, is that only a statutory body is concerned. The noble Earl, Lord Caithness, to whom I am very grateful for his kind words, asked who would decide. At the very end, the Secretary of State will decide, but that will be following consultation. We are looking for a common-sense, practical approach to these matters, not something that is too hidebound in statute. Having said that, I hope that the House will forgive me if I do not go further into the matter today.

On Question, amendment agreed to.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy) 5:15, 18 January 2006

moved Amendments Nos. 16 to 19:

Page 18, line 1, leave out "election of members" and insert "appointment of members (by election or otherwise)"

Page 18, line 2, leave out "elected" and insert "appointed"

Page 18, line 7, at end insert—

"( ) The terms referred to in subsection (2)(aa) include in particular terms as to—

(a) entitlement to elect members;

(b) entitlement to attend meetings."

Page 18, line 10, leave out paragraph (b).

On Question, amendments agreed to.

Clause 32 [Ancillary powers:

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, the amendment clarifies the nature of commons associations powers to raise money. It emphasises that an association may apply for funds from any source to raise money. Of course, that includes agri-environment schemes, rural development programmes, heritage lottery funding and any other funding programme currently available. The amendment was prompted by concern expressed by noble Lords that the link between commons associations and agri-environment schemes was not stated more explicitly in the Bill. We have taken the opportunity since Report, as I promised, to explore that issue and concluded that it would be best to make a more explicit reference to the ability of commons associations to raise money from a wide range of sources.

Our amendment is made to the ancillary powers rather than the functions of commons associations. The activity of raising money from any particular source cannot properly be regarded as a core function. The primary purpose of the association is to engage in activities related to the management of agriculture, vegetation and common rights—not to raise money. Of course, raising money may be an important activity for an association, but it is an ancillary activity that will enable the association to carry out its primary functions.

Our intention with this amendment is to make it quite clear that an association can raise money through application to any source of funding. This includes agri-environment schemes. Why then do we deliberately avoid the phrase "agri-environment scheme", which appears on an amendment that may be discussed in this group? The government amendment avoids such a mention, which is not to suggest that we do not consider such schemes to be an important source of funding. I have said that we do. We will encourage associations to enter into schemes, such as the higher level environmental stewardship scheme. In many cases, we would expect commons associations to be formed in order to benefit from financial support afforded by such schemes.

We have not explicitly mentioned agri-environment schemes because, with common land legislation, one has to take the long view. In the decades to come—not in the years immediately ahead—there may be no such thing as an agri-environment scheme. Future funding may take a different form, either as a result of domestic or EU policy changes, and our aim here is to enable associations to adapt to changing circumstances. I repeat that our amendment does this by making explicit that commons associations may apply for funds from any source.

I hope it is fair to say that a general principle of legislation is that, if a statute gives a body broad powers, as we do here, it is not sensible in the same breath to refer to one detailed example of such a power. To do so may—I repeat, may—tend to undermine the generality of the broad power. This is not out of sympathy with what is behind an amendment that I suspect is about to be spoken to—it is that it is not necessary and would be against the general principle of legislation. I beg to move.

Photo of Lord Tyler Lord Tyler Liberal Democrat

My Lords, I wish to respond to the Minister's advocacy of his Amendment No. 20 and also, as he has anticipated, to refer to Amendment No. 21, tabled in my name and that of my noble friend. I and my colleagues welcome the way in which the Minister has responded to our anxiety, which we expressed at various stages during the passage of the Bill, but notably on Report. We welcome the movement by the Government. Nothing that I shall now say in any way undermines that. However, perhaps I may say that the Minister protests too much about the difficulties that might arise from our amendment. I shall speak briefly in these terms, but I hope that the Minister will take it from me that brevity in this case should be no indication of any lack of sincerity about our amendment or the severity of the problems currently facing highland and upland livestock farmers in the south-west, Wales and right up through the Pennines. They are on the brink of economic collapse in many cases and require every sort of encouragement to participate in the funding schemes to which we specifically refer.

Perhaps I may draw your Lordships' attention to the specifics of our amendment. It does not, as the Minister suggested, tie funding to agri-environment schemes. The noble Lord, Lord Plumb, is right to talk about the long term. I have been involved enough in working with farmers to know that they think about the long term. If the Minister thinks that agri-environment will not be on the agenda of farmers in 40 or 50 years' time, he is a brave man. I think that it is with us semi-permanently or permanently. But even if he is right, we have also used a similar phrase to his amendment to ensure that should the phrase "agri-environment" disappear from the lexicon, we can still make sure that these ancillary powers are there. I should also say in passing that we accept that this is the right place in the Bill and that the Minister is right to put it here.

Making specific reference to agri-environment scheme funding is important for four reasons. The real danger for this legislation is not that it will be too powerful and influential, but that it will simply wither on the vine—unless we provide a specific encouragement to those responsible for commons to set up statutory commons associations. It will be abortive. I am pleased to note that in its briefing on today's debate, the National Farmers' Union supports our initiative. It recognises the importance of this provision.

That brings me to my second point. There should be an explicit advantage to those who wish to form a statutory association, otherwise they simply will not bother. Highland and upland farmers are busy people and do not have time to sit in committees or on association boards unless they can see a specific advantage in so doing. In the context of the new version of the CAP, let alone what will come after 2012 when I am sure it will move even further in this direction, we believe that as much emphasis as possible must be placed on agri-environment schemes in the Bill itself.

The noble Lord has just said that in addressing legislation it is important to do so with certain principles in mind. One of those principles is that we should say what we mean and mean what we say. In emphasising the real initiative behind this legislation, it is critical to indicate that explicit funding will be easily available. We should not be mealy-mouthed about it.

Finally, and again I echo the experience of the noble Lord, Lord Plumb, we must take the long view. Surely if this Bill is itself to be sustainable and still in place in 20, 30, 40 or 50 years, we have to ensure that it provides effective encouragement to those concerned enough to go to the trouble of setting up a statutory association.

There has been much discussion during our deliberations this afternoon about how in the past people have given their time, effort and energy to the creation of voluntary associations. That will not transfer into statutory associations unless there is a clear advantage in financial terms. That is what we propose in the amendment.

Photo of Lord Williams of Elvel Lord Williams of Elvel Labour

My Lords, I disagree with the noble Lord, Lord Tyler, and agree with my noble friend, whose amendment covers all the arrangements that the noble Lord, Lord Tyler, envisages. My noble friend has set it out perfectly well. On the other hand, I am a little doubtful about the wording of my noble friend's amendment, which states,

"(including by applying for funds from any source)".

In my banking days I used to worry about reputable sources and disreputable ones. I hope very much that my noble friend will be able to say that the purpose of the amendment is to allow commons associations to apply for funds from reputable sources, but not from disreputable sources. We all know, in a world that goes along as it does, there may be occasions when someone will say, "The commons association wants to do this, that or thus. Here am I, prepared to provide the funds". What the downside is, we know not. I hope that my noble friend will be able to assure me, as a ministerial statement, that "source" means a reputable one.

Photo of The Duke of Montrose The Duke of Montrose Deputy Chief Whip, Whips, Shadow Minister (Environment, Food & Rural Affairs (Also In Scotland Team), Environment, Food & Rural Affairs, Shadow Minister, Scotland

My Lords, after the comments of the noble Lord, Lord Tyler, I must declare my interest as a Highland and upland farmer, and someone who does make claims under agri-environmental schemes—though I am not necessarily doing myself much good in that regard during my time here. I have listened with interest to the contribution of the noble Lord, Lord Tyler. After scratching my head a little, I find myself in some sympathy with the Minister in looking for a simpler way to phrase the objective here. As the single farm payment runs in England at the moment, the various people who have an interest in the historical element of common grazing will have amalgamated their payments on to their own holdings. So there will be no historical payments on the commons but I do not know what will happen to the land-based payments. Perhaps the noble Lord wants the commons associations to have the power to register themselves as agricultural holdings. This is a complicated area and the Minister has perhaps taken the right approach.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy) 5:30, 18 January 2006

My Lords, it has been a very interesting debate. I thank the noble Lord, Lord Tyler, in particular, for the way in which he put his points. But I still disagree with him and I shall tell him why in a moment.

Dealing, first, with the point raised by my noble friend Lord Williams, I am sure that the commons associations would be well advised to apply to reputable sources, but my noble friend will forgive me if we do not provide for that on the face of the Bill. The point he makes is well understood.

The noble Lord, Lord Tyler, took some comfort from the approach of the National Farmers Union. I am not sure that we read its approach in quite the same way. Everyone always wants to be on the side of the National Farmers Union—certainly I do and I am sure the noble Lord does too. In its parliamentary briefing, the NFU said:

"We welcome Lord Bach's amendment to clause 32"— to which I have spoken—

"which makes it clear that in raising money commons associations can apply for funds from any source. We hope that in response to the amendment in the names of Lords Livsey and Tyler the minister will confirm that associations may apply, and will be eligible for, agri-environment scheme funding".

I happily confirm exactly that.

I do not think that the National Farmers Union is saying that the amendment spoken to by the noble Lord has to be on the face of the Bill. Tempting though the arguments put forward by the noble Lord, Lord Tyler, may be, I would still argue the general principle that if a statute gives a body broad powers it is not sensible—however attractive it may seem pro tem—in the same breath to refer to one detailed example of such a power. That is the principle on which I will stick in this instance.

Of course there are many examples of the way in which upland farmers are already using stewardship. I absolutely accept what the noble Lord, Lord Tyler, said about the difficult times that upland farmers—and, indeed, other farmers in other parts of the country—are facing at the present time. I agree that they need every encouragement to enter into stewardship schemes. We will give them every encouragement—but that does not include putting it on the face of the Bill, where it does not really fit.

On Question, amendment agreed to.

[Amendment No. 21 not moved.]

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

moved Amendment No. 23:

After Clause 37, insert the following new clause—

"FEDERATIONS OF COMMONS ASSOCIATIONS

(1) There shall be a Federation of commons associations for England.

(2) The functions of the Federation shall include—

(a) the co-ordination of all commons associations in England, who shall be members of the Federation,

(b) assisting commons associations to achieve their objectives,

(c) the provision of rules and a constitution for use by voluntary commons associations.

(3) There shall be a Federation of commons associations for Wales.

(4) The functions of the Federation shall include—

(a) the co-ordination of all commons associations in Wales, who shall be members of the Federation,

(b) assisting commons associations to achieve their objectives,

(c) the provision of rules and a constitution for use by voluntary commons associations.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

My Lords, the Public Bill Office has made a small error by attaching the name of the noble Lord, Lord Selsdon, to this amendment. In old-politics-speak: "I am not Selsdon Man". My name should have been there. It is unfortunate, but I have not beaten anyone up about it or anything like that.

Amendment No. 23 seeks to insert a new clause into the Bill after Clause 37. We would like to see a federation of commons associations in England with the following functions:

"the co-ordination of all commons associations in England, who shall be members of the Federation . . . assisting commons associations to achieve their objectives . . . the provision of rules and a constitution for use by voluntary commons associations".

In subsection (3) of the amendment we propose exactly the same structure for Wales—a federation of commons associations for Wales—with precisely the same functions as the ones I have just read out.

The amendment seeks to address the frustration expressed by the noble Lord, Lord Plumb, and the noble Baroness, Lady Byford, about the structure of the legislation and, in particular, the fact that it addresses statutory commons when the vast majority of commons—in fact, 99 per cent of them—are voluntary commons. That is the situation in which we find ourselves today. There are so many voluntary commons associations, as other noble Lords have said, because voluntary commons were set up as a result of the Commons Registration Act 1965. So there are no statutory commons existing in any real number.

We share exactly the same concern as the noble Lord, Lord Plumb, the noble Baroness, Lady Byford, my noble friend Lord Tyler and others—that the powers given to statutory commons and their ability to access funding, particularly for the environment, will be denied to voluntary bodies. Because voluntary commons association are inadequately resourced, many of them—I think I am right in saying that there are 194 in my area—are not in a position to take advantage, nor do they wish to be statutory commons. The uptake, sadly, will be minimal because of the bureaucracy, a lack of staff and so on.

We envisage these federations—the overarching bodies referred to by the noble Baroness, Lady Byford—as a possible solution to the problem that we have been discussing for the past three-quarters of an hour or so. The federations in England and Wales could take on a statutory role to enable the voluntary commons associations to participate and to get the benefits into the upland areas—which have quite rightly been described as being so hard pressed—in order that they should become more viable. It is one way of doing it.

In the Bill as drafted there appears to be a fundamental fracture between the legislation for statutory commons and the overwhelming number of voluntary commons associations. The amendment would help to bring more cohesion to the legislation and assist the process of achieving the Government's desirable objective of improving the situation for those with common rights. We believe that the amendment could be the way forward. It would assist the process; revolutionise the legislation, which currently addresses only statutory commons; and would benefit a far wider number of commons in the voluntary sector. I beg to move.

Photo of Lord Renton Lord Renton Conservative

My Lords, I broadly rather support the amendment. However, can the noble Lord explain how it is that on four or five occasions he referred to the co-ordination of all commons associations? What does "co-ordination" mean in that context? At the end of his amendment, we find the expression "voluntary commons association". How does that differ from any other commons association?

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, we have had the debate on the earlier amendment so I shall not go through it. I have reservations about the wording of the amendment of the noble Lord, Lord Livsey. I have reservations about the idea of a single umbrella body for the whole of England. Regional bodies would perhaps be more appropriate because of the sheer cost of getting everybody together. While I support what the noble Lord is trying to do in theory, and while an umbrella body for Wales might well be relevant, I am not so sure about such a body for the whole of England. One would again have to look at costs. Who would pay for it? How would people get there? What administration would be involved? I shall leave the noble Lord, Lord Livsey, to answer the question of the noble Lord, Lord Renton.

As it is laid out, the amendment is a little too prescriptive. While I would prefer it to be more general, in the way I described when we were debating the previous amendment, I understand where the noble Lord, Lord Livsey, is coming from.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I was surprised by the noble Lord, Lord Livsey. He knows, as I do, that "here be dragons" in drafting legislation that states, "In Wales, there shall be". I shall not take a route into a wood full of Welsh dragons, because the Welsh people jealously and rightly guard their ability to make their own decisions. I agree with the noble Baroness, Lady Byford, on this matter. Such an association ought to rise from below and not be imposed from above, so that people can choose the form that it takes. It is no good the noble Lord, Lord Greaves, laughing. He does not have the several years' experience that I have had of speaking for the Government on Wales at this Dispatch Box. During that time, I learnt exactly where the ice was thin and where it was not sensible to tread.

We welcome the idea of establishing federations, but as I and the noble Baroness, Lady Byford, said, they should be developed from the bottom up rather than imposed from above by statute. Such bodies will be more effective if created and managed by committed people who represent the interests of commoners. Providing in legislation that there shall be a federation of commons associations will do nothing to garner the enthusiasm and commitment that would be needed to create such a body. Indeed, the amendment might even hinder the development of an effective organisation by placing unnecessary restrictions on what it may or may not be able to do.

We have already supported the formation of two federated bodies in England using funds from the England Rural Development Programme, and we are aware of the developing role of the Welsh commoners forum which represents the interests of commons associations in Wales. Those bodies play a valuable role in the provision of advice and information to commoners and the public in the regions in which they operate. They have proved effective also in communicating the concerns of commoners to government departments and agencies. I place on record our welcome for their involvement in briefing on the Bill.

All the functions for a federation that are proposed in the amendment can be carried out now without waiting for legislation. For example, a federation would be able to assist commons associations in achieving their objectives by providing expert advice and best-practice guidance. A federation might also be able to provide practical advice on development of a constitution and on rule-making; for example, through providing model constitutions and model rules. This would be a valuable service that would assist any voluntary commoners association which is considering taking statutory powers. A federation could also provide services for the mediation of difficult issues, perhaps providing persons to act as independent arbitrators in disputes. There is nothing to prevent the development of such a body now if the commoners felt that it would be of value. Legislation is not required. On Dartmoor, for example, many voluntary commoners associations happily coexist with the statutory Dartmoor Commoners Council.

In answer to the question of the noble Lord, Lord Renton, about the difference between statutory or voluntary groups, I say that a voluntary commons association is a group of common rights holders and others who choose to join together to manage their rights on a common in a more co-operative manner. In answer to the noble Lord, Lord Livsey, I say that voluntary bodies can even now apply for agri-environment funding. Many bodies in England have successfully done so. However, entering a scheme requires near-unanimous support from commoners. This legislation removes that constraint. I am sure that he will welcome that information and hope that the amendment will not be pressed.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs 5:45, 18 January 2006

My Lords, I thank those who have spoken in this debate. I hope that the noble Lord, Lord Renton, understood from the Minister the principles behind voluntary commons associations. They have existed for some considerable time through use in their locality. Co-ordination is one of the forms of help which these associations require. The amendment would attempt to enable a framework to emerge and encourage the voluntary commons associations to participate in it. It was difficult to decide how far to draft the amendment. If it were minimalist, it might be thought to be trivial. I detect, though I would never address it in hard language, a hint of a conspiracy between the Minister and the Conservative Front Bench in saying that the amendment is too prescriptive and hinting that there will be a federation of commons associations for Wales. As somebody who lives and works in Wales and who has represented the country for some considerable time, I know that the problem is that the National Assembly for Wales does not have the power to create this. It can achieve it only by statute in this way. I support quite a lot of the Government's forthcoming Bill on the governance of Wales which will give the Welsh Assembly more powers.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I hope that I have made myself plain. There is a voluntary association in Wales. Nothing in this Bill prevents there being one. We do not need to give any powers to anyone to do that, unless we wish to instruct them that they must.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

My Lords, it might interest the Minister to learn that I spent two hours of my Sunday discussing this very matter with the voluntary association of commons in Wales. It supports a clause of this kind being inserted in the Bill, because it does not have the power to create a federation, nor does the Welsh Assembly. It is very difficult to achieve. The benefits of statutory commons will not be accessed unless an overarching body in which voluntary associations will be able to participate exists. That is the problem. That is why we have put forward this amendment, which might assist the voluntary commons associations. Although they are participants from the grassroots upwards, they desire this kind of amendment to enable them to gain the benefits of a statutory commons association without all the problems of bureaucracy that they would face as very small voluntary commons associations. At present, they cannot participate, nor do they want to for those very good reasons. This amendment might assist them.

I hear what has been said in this debate, and I hope that a model of this kind is a constructive contribution to it.

Photo of Lord Renton Lord Renton Conservative

My Lords, would the noble Lord please explain how it can be said that some commons associations are voluntary when, in fact, they are all voluntary?

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

My Lords, the formation of statutory commons is contained in the Bill. Encouragement for voluntary commons to become statutory commons is part of the objective. I think that that is the best way in which to describe the situation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 [Powers of local authorities over unclaimed land]:

Photo of Lord Greaves Lord Greaves Spokesperson in the Lords, Environment, Food & Rural Affairs

moved Amendment No. 24:

Page 27, line 14, at end insert—

"( ) Where subsection (1) applies and a commons association established under Part 2 does not exist in relation to the land, a local authority may assume and exercise any of the rights of management of the land which would otherwise be held by the owner, until such time as a commons association exists or the owner is identified."

Photo of Lord Greaves Lord Greaves Spokesperson in the Lords, Environment, Food & Rural Affairs

My Lords, this is one of the important remaining issues, which has run throughout our proceedings in this House—the matter of unclaimed commons, which have no known owners and are therefore in a state of limbo.

There are two major problems. First, there is the problem of encroachment and unauthorised development of all sorts—big, small and very small blockages and so on. Secondly, there is the problem of inadequate management and, in some cases, dire neglect, when nobody is looking after the common, in which case, the common may be overgrown, it may be a mess or it may be used as a tip or a dump. I shall not discuss the matter in detail or detain your Lordships with a long list of commons in that situation—but I do have a long list here from all parts of the country, from the Lake District, the Pennines, the south-west and the Midlands, where there are all sorts of problems with things happening on commons which ought not to be happening and which are unauthorised, but there is no owner to stop those things happening and nobody is bothering about it. The basic reason is that they are unclaimed—they are commons with nobody to own them or look after them.

We discussed the matter in considerable detail in Committee, when I proposed that local authorities should have the power, though not the duty, to take over ownership of such commons—and I would still prefer that option to be available. But it has been resisted by the Government, and we are clearly not going to make progress on it, so I shall not move such an amendment today. On Report I tabled the amendment which is repeated today in Amendment No. 24, which sets out powers for local authorities to manage such commons as if they were the owners until such time as a commons association takes it over or until owners turn up and claim the common.

The noble Baroness, Lady Farrington, told me on Report that that was unnecessary because there were already statutory powers for local authorities, parish councils and principal councils to do just that, so it did not need to be put in the Bill. We had a lively discussion about that and, subsequently, the Minister wrote to us about all sorts of things, including setting out the powers that the Government believe local authorities have. The noble Baroness, Lady Farrington, said:

"The local authority may consider taking the land in hand and managing it as if it were the owner".—[Hansard, 30/11/05; col. 282.]

The letter set out various statutes, including the Local Government Act 2000, the Open Spaces Act 1906 and the Commons Act 1899, which the Government believe give all the powers necessary.

Today, I have tabled an amendment to get that ministerial statement on record, so that Members of the House of Commons can consider the matter, challenge what has been said if they think that it is not right and discuss it further—because it may go further. Alternatively, it will simply be there on the record and everybody will know what the position is. It would be extremely helpful if the noble Baroness would do that now. Will she also consider whether the guidance that the Government have promised, which will be given to local authorities, could include the information that I hope and trust she will now give us, to encourage them to be much more proactive in looking after the commons? I beg to move.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I understand why the noble Lord would like on record the contents of the letter sent by my noble friend to all noble Lords who took part in debates on the Bill at various stages. I am delighted to confirm, by repeating what the letter said, that all local authorities, including parish councils, under Section 9 of the Open Spaces Act 1906, may undertake the entire or partial care, management and control of any open space, whether any interest in the soil is transferred to the local authority or not. If the powers are considered by a local authority to be insufficient, we would commend the making of the scheme for the management of the common land under Part I of the Commons Act 1899. That is a relatively simple procedure by which a district council, including a unitary authority, or a national park authority, may consult on and make a scheme for the management and regulation of any common, such powers then being vested in the authority. It is possible for the owner or one-third in value of the commoners to veto a scheme; but if the land is unclaimed and untended, it seems unlikely that a veto would be exercised. We also suggest that approach if the authority is seeking funding through an agri-environmental scheme. The second possibility is that the local interests in a common could apply to the national authority for an order establishing a commons association with representation of those local interests on the governing body. That would be particularly appropriate when unclaimed common land remains important to the local agricultural economy.

I hope that the noble Lord understands that we simply do not need the powers conferred by his amendment, as they are already amply provided for in Part I of the 1899 Act and Part 2 of this Bill. Those powers have been carefully crafted to balance the various interests in unclaimed common land, and I commend their use. We certainly intend to write a circular to local authorities about their responsibilities under the legislation, and I expect that we shall consult on a circular in due course. I thank the noble Lord for his interest and hope that the reply has been helpful.

Photo of Lord Greaves Lord Greaves Spokesperson in the Lords, Environment, Food & Rural Affairs

My Lords, I am most grateful to the Minister for doing as much as I hoped that she might do today. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 53 [Commencement]:

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

moved Amendment No. 25:

Page 31, line 3, leave out "sections 9," and insert "section 9 and Schedule (Authorised severance) and sections"

On Question, amendment agreed to.

Clause 54 [Severance: transitional]:

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

moved Amendments Nos. 26 and 27:

Page 31, line 13, leave out "Subsection (7) of section 9" and insert "Sub-paragraph (5) of paragraph 1 of Schedule (Authorised severance)"

Page 31, line 14, leave out "subsection (3) of that section" and insert "that paragraph"

On Question, amendments agreed to.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

moved Amendment No. 28:

Before Schedule 1, insert the following new schedule—

"AUTHORISED SEVERANCE Severance by transfer to public bodies

1 (1) A right of common to which section 9 applies may on or after the day on which this Schedule comes into force be severed permanently from the land to which it is attached by being transferred on its own to—

(a) any commons association established for the land;

(b) Natural England (where the land or any part of it is in England); or

(c) the Countryside Council for Wales (where the land or any part of it is in Wales).

(2) Where a person proposes to sever a right of common to which section 9 applies by a transfer under sub-paragraph (1)(b) or (c), Natural England or the Countryside Council for Wales as the case may be must—

(a) give notice of the proposal to the owner of the land over which the right is exercisable unless his name and address cannot reasonably be ascertained;

(b) in a case where there is no commons association established for the land, give notice of the proposal to such persons (if any) as they consider represent the interests of persons exercising rights of common over the land.

(3) A notice under sub-paragraph (2) must be given at least two months before the transfer and must—

(a) specify the name and address of the owner of the land to which the right is attached;

(b) describe the right proposed to be transferred, giving such details as regulations may specify;

(c) state the proposed consideration for the transfer; and

(d) give such other information as regulations may specify.

(4) Where a right of common to which section 9 applies is exercisable over land for which a commons association is established, the right may only be severed by a transfer under sub-paragraph (1)(b) or (c) if that association consents to the transfer.

(5) The severance of a right of common by its transfer under sub-paragraph (1)—

(a) only has effect if the transfer complies with such requirements as to form and content as regulations may provide; and

(b) does not operate at law until, on an application under this Schedule, the transferee is registered as the owner of the right in the register of common land or of town or village greens in which the right is registered.

Temporary severance by letting or leasing

2 (1) A right of common to which section 9 applies may, on or after the day on which this Schedule comes into force, to any extent be severed temporarily from the land to which it is attached by virtue of the right, or all or part of the land, being leased or licensed on its own in accordance with—

(a) provision made by order by the appropriate national authority; or

(b) rules made in relation to the land by a commons association under section 31.

(2) Provision under sub-paragraph (1)(a) and rules referred to in sub-paragraph (1)(b) may be framed by reference to—

(a) particular land or descriptions of land;

(b) descriptions of persons to whom rights of common may be leased or licensed.

(3) Where (a) provision under sub-paragraph (1)(a) applies in relation to any land, and

(b) rules referred to in sub-paragraph (1)(b) also apply in relation to that land and are inconsistent with that provision, the rules prevail over that provision, to the extent of the inconsistency, in relation to that land.

(4) The appropriate national authority may by order provide that the leasing or licensing of a right of common (whether authorised by provision under sub-paragraph (1)(a) or by rules referred to in sub-paragraph (1)(b)) must comply with such requirements as to form and content as the order may provide.

Severance authorised by order

3 (1) The appropriate national authority may by order make provision authorising rights of common to which section 9 applies to be severed permanently from the land to which they are attached by transfer in accordance with that provision.

(2) Provision under sub-paragraph (1) is to be framed by reference to—

(a) particular land over which the rights of common are exercisable, or

(b) particular descriptions of such land, and may authorise transfers to particular persons, particular descriptions of persons or any person.

(3) The appropriate national authority must, before making any provision under sub-paragraph (1) in relation to any land, consult such persons (if any) as it considers represent the interests of—

(a) persons who own the land;

(b) persons who exercise rights of common over the land.

(4) Provision under sub-paragraph (1) must include provision securing that that the owner of any land over which a right of common is exercisable is to be notified, and his consent obtained, before the right may be transferred.

(5) Provision referred to in sub-paragraph (4) may include provision as to the circumstances in which notification may be regarded as having been given or consent obtained.

(6) The severance of a right of common by its transfer under provision under sub-paragraph (1)—

(a) only has effect if the transfer complies with such requirements as to form and content as regulations may provide; and

(b) does not operate at law until, on an application under this Schedule, the transferee is registered as the owner of the right in the register of common land or of town or village greens in which the right is registered.

(7) Provision under sub-paragraph (1) may include provision to secure the result that where—

(a) the person to whom the right of common is transferred is the owner of land to which rights of common are attached, and

(b) those rights are exercisable over the same land, or substantially the same land, as the right of common being transferred, the transferee must, when making an application as specified in sub-paragraph (6)(b), apply to the commons registration authority for the right to be registered as attached to the land referred to in paragraph (a)."

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, Amendment No. 29 is an amendment to Amendment No. 28. Is that not being moved?

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

My Lords, I appreciate what has been said, but I did not have the opportunity to say so when the noble Baroness's predecessor was in the Chair, on the contributions made in support of some of the principles of the amendment. The points that were made on Amendments Nos. 32 and 33 on temporary arrangements were not put in quite the way that I would have wished. I shall not move the amendment.

[Amendment No. 29, as an amendment to Amendment No. 28, not moved.]

[Amendments Nos. 30 to 35, as amendments to Amendment No. 28, not moved.]

On Question, Amendment No. 28 agreed to.

Schedule 1 [Rectification of mistakes etc under the 1965 Act]:

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy) 6:00, 18 January 2006

moved Amendment No. 36:

Page 35, line 32, leave out paragraph (a) and insert—

"(a) throughout the period of 20 years preceding the date of its provisional registration the land was, by reason of its physical nature, unusable by members of the public for the purposes of lawful sports and pastimes; and"

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, this amendment responds to amendments tabled by the noble Baroness, Lady Byford, in Committee and on Report, which we agreed to consider further. The amendments relate to paragraph 5 of Schedule 1, which is about the deregistration of town or village greens. The criteria for deregistration are set out in sub-paragraph (3). One of those criteria is that, in the 20 years leading up to the provisional registration of the green in the late 1960s, there must have been some physical impediment to use for the whole of that period.

Sub-paragraph (3) is not revisiting the issue of whether there was enough evidence of qualifying use during the 20-year period; rather it is concerned with the physical impossibility of there having been such use. For example, the registered land may have actually been occupied by a house and garden during the 20-year period in question. We have concluded that the wording of sub-paragraph (3)(a) is not helpful to its understanding and our amendment is, we hope, clearer. The amendment will clarify that the physical impediment must have been present throughout the 20 years preceding registration, rather than some part of that time. The amendment is not intended to effect any substantive change in policy, but merely to clarify the doubt identified in the amendments tabled at earlier stages. I beg to move.

Photo of The Duke of Montrose The Duke of Montrose Deputy Chief Whip, Whips, Shadow Minister (Environment, Food & Rural Affairs (Also In Scotland Team), Environment, Food & Rural Affairs, Shadow Minister, Scotland

My Lords, I express my thanks and those of my noble friend Lady Byford to the Minister for taking on board our worry and bringing forward the amendment, which we support.

On Question, amendment agreed to.

Schedule 3 [Works: supplementary]:

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

moved Amendment No. 37:

Page 40, line 21, leave out from beginning to "section" and insert "In its application to any works carried out on or after 28th June 2005 but before the day on which section 38(1) above comes into force,"

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, my next comment may make the noble Lord, Lord Livsey, even more concerned—although he would never say so—about an unholy alliance. Government Amendments Nos. 37 and 39 respond again to concerns raised by the noble Baroness, Lady Byford, and the noble Earl, Lord Peel, on Report about the wider powers in paragraph 6 of Schedule 3 to enforce against works already undertaken on common land before this Bill was introduced into this House on 28 June 2005. I said then that we would give further consideration to this matter. We have done so, and these two amendments are the result.

We have brought forward these amendments because on reflection we agree that it is not reasonable for the schedule to widen the Section 194 enforcement powers in relation to works undertaken before the introduction of the Bill. Such works are likely to have been undertaken in reliance on the enforcement position set out in the existing Section 194, and we do not think it would be just to allow any person to apply to the county court for enforcement action in such cases.

I make clear that it remains possible for the parties who can already apply to the county court under Section 194 for enforcement action to do so in relation to works constructed before introduction. These parties are the district, borough or county council or unitary equivalent, the landowner, and anyone else with a legal interest in the common, such as a commoner or the holder of an easement over the land. All these will remain able to apply to the court for enforcement against unlawful works, subject to the existing rule under the Limitation Act 1980 that prevents enforcement action against works undertaken more than 12 years earlier.

For works undertaken after the introduction of this Bill and before the commencement of Part 3 and associated repeal of Section 194 of the Law of Property Act 1925, the government amendments do not change the current effect of paragraph 6 of Schedule 3. Any person or body will be able to apply to the county court to enforce the Section 194 controls in such cases. And we intend to implement the repeal of Section 194, when that happens in due course, with a saving to preserve all powers to enforce the section in relation to works already undertaken by the date of repeal. When at that point the new Part 3 works control regime comes into force, any person or body will equally be able to apply to the court to enforce the controls under that part.

We think the government amendments strike the proper balance between providing for better enforcement of the works control regime and protecting the position of land owners, occupiers and others who have undertaken works in reliance on the previous regime.

The noble Lord, Lord Greaves, may disagree and may speak to his amendment in due course. I think we are agreed that his amendment would neuter the two government amendments. If his amendment were passed, paragraph 6 of Schedule 3 would simply have its current effect. Any person could then apply to the court to enforce Section 194, irrespective of when the works in question were actually undertaken. I beg to move.

Photo of Lord Greaves Lord Greaves Spokesperson in the Lords, Environment, Food & Rural Affairs

had given notice of his intention to move, as an amendment to Amendment No. 37, Amendment No. 38:

Line 2, leave out "on or after 28th June 2005 but"

Photo of Lord Greaves Lord Greaves Spokesperson in the Lords, Environment, Food & Rural Affairs

My Lords, I speak to Amendment No. 38, which is in this group and is an amendment to Amendment No. 37.

We are on the last group of amendments at the end of what has been a gruelling but absolutely fascinating series of meetings of various sorts to discuss this Commons Bill. I think that a lot of us could now pass an examination on the Bill and achieve at least a grade C or even a grade B. We know about all sorts of things that we knew absolutely nothing about before. This has been a fascinating experience and procedure. People say that this is the kind of thing the House of Lords does very well. The House of Lords does lots of things very well but we can be very proud of the work that we have done on the Bill, particularly in Grand Committee—I refer collectively to the Government and the rest of us. It is a much better Bill now than when it started. A huge amount of credit for that should go to the two Ministers who have been involved and their backing team of civil servants—the noble Lord, Lord Bach, and the noble Baroness, Lady Farrington, who approached the Bill in a spirit which allowed Members on all sides of the Committee to contribute. The Bill is much better for that.

Having said that, it is slightly unfortunate that we end on a note of disagreement and of considerable disappointment at the amendments that the Government are now putting forward. These are new issues and therefore it is not unreasonable to spend a few minutes on them. The Minister said that he did not think it was reasonable to extend the new powers which everybody will have to initiate proceedings in the county court under Section 194 of the relevant Act to remedy encroachment, obstruction and so forth on commons. He did not say why he did not think that was reasonable; he just made that statement. I believe that this issue will be raised in the House of Commons when the Bill goes there and that there will be further discussion on it.

The Bill very substantially extends the range of people who can initiate action against encroachment on and obstruction of commons; it extends it to anybody at all. So we have the position that applies, for example, on rights of way under the Highways Act whereby any of us can go to the county court and ask it to seek the removal of obstructions even if the local authority and anyone else who might have an interest does not do that. If I remember rightly, that great improvement was introduced in the CROW Bill when it passed through this House. It is certainly a very valuable measure. The measure that I am discussing introduces a similar power in relation to encroachment on commons. That is very welcome. However, the Government are now restricting that power to encroachments which took place on or after 28 June 2005. However, it does not matter when the incident took place, an encroachment is an encroachment, and it is an encroachment now. It is not just the fact that someone put up a fence, built a ditch, erected a shed, created a car park or whatever, perhaps six or seven years ago; that encroachment is an ongoing problem for people today. If the power to remove that encroachment within the past 12 years is still available to the local authority, why should it not also be available to anyone else under this power? It is not clear why that restriction should be put in, and the Government will have to explain that further as the Bill goes through. For the moment, I have tabled this amendment, and I hope that the Government will think again. I recognise that they are not going to do so today, and on that basis I stand merely to put forward the case.

Finally, since this is the last time that I shall speak on the Bill, I wish it a good passage through the House of Commons. They will find it in a better condition than some of the Bills are in when they start at that end.

Photo of Lord Judd Lord Judd Labour

My Lords, I hesitate to intervene at the eleventh hour plus, on a Bill that I have so warmly welcomed and on which so much hard, detailed work has been done by Members on all sides of this House. Like many others who have not been involved in that work, I am deeply impressed, and I believe that it has been the House of Lords at its very best.

I intervene because I would not like my noble friend to feel that the point that has just been made is limited to the concern of the noble Lord, Lord Greaves. I declare an interest as president of Friends of the Lake District, which represents the CPRE in Cumbria, where we have about 30 per cent of the commons in England. Almost in parentheses, and not only in a personal capacity but as president, I say how warmly the Friends of the Lake District have welcomed this Bill and all the intentions behind it. However, there is some disappointment about the Government's change of mind, and I should report that to this House. There was great enthusiasm about the principle of extending the possibility of taking action to ordinary people and to the public in general. This is seen as a sad step backwards. In Cumbria, there is quite a large problem of encroachment on not just a few, but quite a number of, commons. In one case, there is more than 2 km of barbed wire. Those sorts of things in a real, living community upset people, and they stored great hope on an opportunity for them as ordinary citizens to take action.

I am always glad when the Government listen and adjust in the light of comments. Will they listen to the observations from those on the front line? As the Bill goes to the Commons for what I hope will be a very smooth passage, perhaps this point could be reconsidered.

Photo of Lord Tyler Lord Tyler Liberal Democrat

My Lords, I endorse what has been said by my noble friend Lord Greaves from a different part of the country, and I very much welcome what the noble Lord, Lord Judd, has said about the far north-west, which is also true of the south-west. This is a great opportunity, and I also fully endorse the comments made about the ministerial team and the importance of this legislation. In various capacities I have been looking forward to this Bill for many, many years, and I am delighted to have been involved as a very lowly apprentice in this process. It has been an extraordinarily interesting apprenticeship. I appreciate that in this House it takes about 20 years to learn how to operate, but at least I have made a start on this Bill. I am very appreciative of the way in which the ministerial team and other noble Lords have welcomed a newcomer to this place and given me an opportunity to speak on behalf of some of the people of the south-west, who will undoubtedly benefit from the Bill. It has been a very interesting experience. I also endorse what has been said about the way in which this Bill goes to the other place. I hope that there will be more thought about this issue, which I suspect will be of interest to Members in that place as well.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

My Lords, I associate with my friend's remarks on behalf of the whole Front Bench and everyone who has participated. We thank the Minister for his patience and also for the assistance of the Bill team; we do appreciate it.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs 6:15, 18 January 2006

My Lords, I am looking around to see whether anyone else wants to come in. I hope that the Minister holds his resolve on this occasion, whatever the Liberals say. We are very grateful to the Minister for bringing back Amendments Nos. 37 and 39 on an issue that was debated very fully earlier on, so I will not go over that ground again. I understand the other views that are held. What is so good about this House is that people hold different views and are not afraid to express them. On this occasion, I hope that the Minister will resist the amendment spoken to by the noble Lord, Lord Greaves, and we are grateful to him for dealing with it in the way that he has. I also add my very brief thanks to everyone who has taken part in the Bill, particularly to the members of the Bill team and to the Ministers.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, it is ironic that we should end this Bill on a point of honestly stated disagreement, bearing in mind how hard we have striven to find sensible consensus around the House on its provisions. My noble friend and I are very grateful indeed for all the kind remarks that have been made around the House both to us and to our officials. I, too, think that the Bill has improved dramatically since it first came to this House, and that is in large measure due to the interest and the opinions expressed by the opposition parties and by noble Lords from the Cross Benches. I am sure that the noble Lord, Lord Greaves, is right that the Bill does leave the House in a much better frame than it would have done had it not been amended and agreed accordingly. I am sorry that we cannot agree with the noble Lord, Lord Greaves, on his amendment; I have already expressed why we cannot. On that note, I thank everyone who has taken part in the Bill in this House.

[Amendment No. 38, as an amendment to Amendment No. 37, not moved.]

On Question, Amendment No. 37 agreed to.

Photo of Lord Williams of Elvel Lord Williams of Elvel Labour

My Lords, we used to have in this House a debate on the Motion that the Bill do now pass. Sometimes it was known as "Fourth Reading", but it was not in any sense a fourth reading. All the tributes that I understand have been paid now to the Minister came up under the amendment spoken to by the noble Lord, Lord Greaves. It seems odd to me that no one speaks on the Motion that the Bill do now pass. This is the time when the Bill has now been done, and we do not have any particular problems. We all accept that this Bill has gone through this House and has been debated—I will not say endlessly—at some length, both in Committee and on Report.

I am most grateful to the noble Baroness, Lady Byford, and the noble Duke, the Duke of Montrose, who have been very persuasive in their arguments, and the noble Lord, Lord Livsey, who has spoken very much for the Welsh interest, as I have tried to do. Above all, I am grateful to my noble friend Lord Bach, who has been an absolutely brilliant Minister on this. We have had all sorts of advice and plenty of documentation, as my noble friend led us through the various amendments that the Government produced—as well as the arguments on the opposition amendments.

Although it is an awful cliché, this has been the House of Lords at its best. But I really want to congratulate my noble friends Lord Bach and Lady Farrington, because they have been exemplary in their patience and intelligence. I also congratulate their support staff, who I am not allowed to mention, but who sit on my left and contribute endlessly to the pigeons that arrive at the Dispatch Box.

I am grateful to the House, my noble friends, the noble Baroness, Lady Byford, the noble Lord, Lord Livsey, and others, because this has been a good experience in how a Bill should be considered in this House.

Photo of Lord Chorley Lord Chorley Crossbench

My Lords, I was brought up like the noble Lord, Lord Williams of Elvel, perhaps because I have been here a long time, more than the 20 years of the noble Lord, Lord Tyler. I echo everything that the noble Lord, Lord Williams, and noble Lords on the Front Benches have said, about the way that the Bill has been put through by the noble Lord, Lord Bach, the noble Baroness, Lady Farrington, and the team behind them. It has been an exemplary experience on a highly technical Bill. It is a much better Bill than when it started.