Schedule 1
Commons Bill [Lords]
3:15 pm

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I beg to move amendment No. 26, in schedule 1, page 32, line 8, at end insert

‘over which the right is exercisable'

Michael Weir (Spokesperson (Work & Pensions; Trade & Industry); Angus, Scottish National Party)

With this it will be convenient to discuss the following amendments:

No. 41, in schedule 1, page 32, leave out lines 9 to 21.

No. 108, in schedule 1, page 32, leave out lines 9 to 11 and insert—

‘(b) in the absence of a commons association established for the land, all the other dominant tenements in proportion to the rights already existing on the land.'.

No. 39, in schedule 1, page 32, line 21, at end insert—

‘(2A)

(a) where a person proposes to sever a right of common to which section 9 applies by transfer under sub-paragraph (1)(a) the commons association may further transfer the right, with or without consideration, to another person who holds rights of common attached to land for the same common.

(b) where a commons association transfers land under (2A)(a) it shall cause the appropriate variation to the Register in accordance with section 7.'.

No. 40, in schedule 1, page 32, line 22, after ‘sub-paragraph', insert ‘(2A) or'.

Government amendment No. 27.

No. 69, in schedule 1, page 32, line 33, at end insert—

‘(4A) Subsection (4) shall not apply where Natural England or the Countryside Council for Wales can show that severance is necessary to achieve favourable condition of a Site of Special Scientific Interest notified under section 28(1) of the Wildlife and Countryside Act 1981, as amended.'.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

Amendments Nos. 41, 39 and 40, which stand in my name, relate to the issue of the authorised severance of rights, as does the schedule. As drafted, the schedule makes it possible for those who want to transfer their rights voluntarily to transfer them to the commons association or to Natural England or the  CCW in Wales. If they want to transfer them to the latter two, various things must be done under subsection (2).

There is some concern among the public about why Natural England or CCW would want, or should have, these rights. Neither organisation is likely to use grazing rights, as they are not farmers; they are not likely to want to cut turf or carry out any other rights that may be relevant. The understanding is that they will want to acquire them simply to extinguish them, to ensure that they are not used for conservation purposes. I question whether it is right for them effectively to extinguish those rights without other rights holders having the opportunity to be involved. Amendment No. 41 would remove the opportunity to transfer rights to Natural England or the CCW but leaves the possibility of transferring them to the statutory body.

Amendments Nos. 39 and 40 take a slightly different tack, which is probably preferable. They would enable the transfer to the statutory body but would then allow that body subsequently to transfer the rights, with or without some form of payment, to anybody else who already held similar rights on that piece of land, and that is the right way to proceed.

If there is a concern about over-grazing—there is in some cases, although on many commons there could increasingly be the problem of under-grazing—the process that the Bill sets up, the concept of statutory bodies having agreements under the stewardship schemes and so on, with Natural England and the CCW, is about the totality of management. That is the way to address the problems of over-grazing.

The remarks that I made on Tuesday are relevant in that regard: some people may have over-registered in the first place, for whatever reason, and that is often the cause of over-grazing. I strongly doubt that the people who over-registered will voluntarily transfer their rights to Natural England so that they can be extinguished; I might have more sympathy with the idea if that were the case.

I challenge the idea that Natural England or the CCW should be the recipients of the transfer of rights. If people want to give up their rights and transfer them, they should go to the association or statutory body, which should decide whether to keep them, to extinguish them or simply not to use them, which would be entirely within their rights, or to transfer them to other rights holders.

The under-grazing issue is especially relevant because the people who are most likely to want to transfer their rights are those who do not use them. It would be of no value to transfer them to Natural England to extinguish them, because they are not being used in the first place. Where there is a problem of under-grazing I contend that if those who are not using their rights could be persuaded to transfer them to the association and subsequently transfer them to someone who wants to use them it would go a long way to address the problem of under-grazing.

In some ways, this part of the schedule is backto front. As far as under-grazing is concerned, transferring to Natural England will not work. As far as over-grazing is concerned, agreements with Natural England through Government stewardship schemes  are a better way forward than transfers, because I strongly suspect that the people responsible for the over-grazing will not be the ones voluntarily transferring their rights.

My amendments suggest that we should shift the balance and give the responsibility for agricultural management, which includes the use of rights, directly to the statutory body and let that body decide who should have the transferred rights. That is why I have moved the amendments. I hope that the Minister will consider them carefully.

David Drew (Stroud, Labour)

I rise to speak to amendment No. 69. The issue was brought to my attention by the Royal Society for the Protection of Birds, which wishes to take a slightly different perspective from the hon. Gentleman. The amendment would constrain the circumstances in which a commoners association, soon to be known as a commoners committee, could prohibit the transfer of severed rights to Natural England or the Countryside Council for Wales.

The Royal Society for the Protection of Birds is clear that it supports the Government position, as drafted in clause 9, that there should be a general prohibition on severance, as that will maintain the link between those who exercise rights of common and the local community for whose benefit such rights are exercised. However, the RSPB is worried that unless we amend schedule 1, it will be possible to sever commons rights. It is unclear why Natural England or CCW should not be the obvious recipient.

The RSPB’s main concern is that unless the Government reinforce what they are saying in clause 9, severance could go a step too far. Allowing a commoners association or committee to constrain the natural recipient—either Natural England or CCW—does not seem sensible.

The RSPB is concerned for two reasons. First, the Bill’s current wording could risk the loss of an important tool for delivering DEFRA’s public service agreement target for sites of special scientific interest, which requires that 95 per cent. of SSSIs by area should be in favourable condition.

Secondly, clause 28(3) disapplies section 28G of the Wildlife and Countryside Act 1981, which makes it clear that a commoners association or committee is not regarded as a public body with a duty to further the conservation of SSSIs consistent with its primary duties. The RSPB is worried that that would not necessarily be an ultimate priority of commoners committees, whereas it would be a prime responsibility of Natural England and CCW as public bodies. I hope that the Minister hears me and understands why those public bodies, with their particular responsibilities, are important as the natural recipients of severed land rights.

Dan Rogerson (Shadow Minister, Office of the Deputy Prime Minister; North Cornwall, Liberal Democrat)

I rise to speak to amendment No. 108, which was tabled by my hon. Friend the Member for Brecon and Radnorshire and me. Its aims are broadly similar to those of the amendments tabled by the hon. Member for South-East Cambridgeshire.

We do not think that severance in principle is a good thing. We should like the rights to remain with the dominant tenements where they have customarily done so. If, however, it is felt for some reason that that must happen for the management of a common, we believe that it is vastly preferable that those rights should go to people who are actively involved in the life of the common.

Under-grazing is a growing problem. I could provide examples from Bodmin moor, where archaeologists are showing changes that have occurred and explaining how features of the landscape are no longer visible because of under-grazing. Under the single farm payment rÃ(c)gime and the move away from production, that problem is likely to grow. As for whether farmers in England will ever receive their payments under the single farm payment scheme, that is a discussion for another arena.

My final point relates to the history of common land and how it has been managed in the past. We have gone back to Acts dating from 1285 and the principle is that common rights are exercised by people who have dominant tenements in such areas. It is dangerous to move away from that principle, so we want the Minister to accept the amendment to prevent the rights from being moved to national organisations.

Elfyn Llwyd (Parliamentary Leader; Meirionnydd Nant Conwy, Plaid Cymru)

I shall speak in support of the amendment, and inso doing I shall quote the RSPB briefing. Itstates:

“Thusthe legislation provides a mechanism to facilitate the bettermanagement of common land through the reduction of stock in instancesof over-grazing, and reintroducing or increasing stock in instances ofunder-grazing.”

The RSPBappreciates that the problem of under-grazing has a knock-on effect onthe whole environment. Who better to deal with that issue thancommoners? Why should such matters be farmed out to a national body forit to decide what is best for local people? I do not follow such logic.If the Government are serious about the Bill, they must realise thatthe amendments are good. They would lead to a proper, balanced use ofthe common.

Thearguments advanced by the hon. Member for South-East Cambridgeshirewere persuasive, inasmuch as those who have over-registered will notcare what happens to the common. However, people who are on the groundday in, day out care passionately because, if their stock over-grazes,it will destroy for everyone not only themselves as farmers, but thewhole environment. The more local, the better. The amendment would plugthegap.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

The powers of a commons association to dispose ofrights of common acquired under schedule 1 will be determined in itsestablishment order. The order could confer a freedom to dispose ofrights in gross as it thinks fit or it may provide that the associationmust retain the rights subject to arrangements for temporary letting.That will be a matter for discussion and negotiation in the context ofthe draft order. It is more appropriate to decide such matters on acase-by-case basis than to confer a blanket authorisation under theschedule. That is my response to amendments Nos. 39 and40.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

I appreciate that time is short, but we need to getmatters clear. If what the Minister said is the case, what is thepurpose of schedule 1? If we are to have flexibility, a word that thehon. Gentleman has used repeatedly in Committee, and settle suchmatters under individual orders for individual associations, why do weneed schedule 1? It stipulates clearly the rules governing who shouldtransfer to whom and how in cases of authorised severance. I press himfor clarification of the interaction between schedule 1 and theflexibility under the order to which hereferred.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I may receive clarification, but I think that theorder is flexible only as regards the actions of the commonsassociation in respect of severance. Obviously, not everywhere willhave commons' associations. There are clear restrictions on suchmatters.

As foramendment No. 41, the powers of severance under paragraph 1 arelegitimate tools available to Natural England and the CountrysideCouncil for Wales to help tackle problems of over-grazing. I agree inprinciple with what the hon. Gentleman said about under-grazing.Natural England seeks to retain the powers only to tackle over-grazingas a last resort. There is also a role for Natural England where thereis under-grazing and no commoner is willing to exercise his or herrights. In such a case, Natural England could perhaps acquire rights byseverance in order to reintroduce grazing if it thought that that wasthe best option.

Wecannot reasonably expect all upland commons to be managed by commonsassociations or entered into agri-environment agreements. Elsewhere,where co-operation remains unforthcoming, we may have no othereffective mechanism to help reduce over-grazing but to acquire and sequester rights so that grazing pressures are reduced. There are nopowers to require rights to be sold. They must be sold, as the hon.Member for South-East Cambridgeshire said, with the vendor’sconsent.

Voluntaryacquisition of rights by English Nature has sometimes been disruptiveof existing hefting patterns. We have therefore amended the Bill toimpose a duty on Natural England to consult voluntary commoners' association before proceeding. We do not think that the powers will bewidely used. To date, they have been used only in a limited number ofcases, but it would be foolish to throw away a power that may still berequired to help the achievement of the PSA target.

I now come toamendment No. 69 tabled by my hon. Friend the Member for Stroud. I amgrateful to him for his suggestion. However, we think that it isunlikely that Natural England or CCW will act to acquire rights in thatway, other than in the most pressing circumstances, namely where thereis no other reasonable way of reducing grazing activity on designatedcommon land. His amendment will therefore effectively neuter the effectof paragraph 1(4) of the schedule, because it would refer to the onlycircumstances in which the provision is likely to haveeffect.

However, webelieve that it is very unlikely that Natural England will need toacquire rights by severance on a common in which a commons  association is established. That would suggest that the association isseverely underperforming. So although an association may possess aveto, it would reflect poorly on the association if it were ever calledon to contemplate exercising it. At that point, Natural England mightwell talk to the National Assembly for Wales or the CCW about theperformance of the association, so we see no practical need to amendparagraph 1(4) in this way.

Finally, I turn to amendmentNo. 108 tabled by the hon. Member for Brecon and Radnorshire. The hon.Member for South-East Cambridgeshire asked an interesting question onTuesday, when we discussed clause 8 stand part. He asked whether rightscould be deployed if the dominant tenement was fully surrendered todevelopment. The amendment could perhaps provide an answer to thatquestion. The owner of the dominant tenement could sever the rights andsee them redeployed to other commoners. I can see the attraction inthat it would help the rights remain in agricultural use, even when thedominant tenement had been taken out of agricultural use.

For the most part, we thinkthat clause 11 provides a sufficient answer. Complete development willseldom arise, but we also foresee real difficulties with thatparticular approach. How many commoners, even though selling out theirfarm for development, would want to distribute their rights among allthe other commoners in the community? We all know of situations inwhich there is festering antipathy between one group of commoners andanother. How would the outgoing commoners secure payment for the rightsif the transaction were on the basis of all or nothing?

More practically, many of ourcommons are not neatly registered as one common with a clear statementof rights held by each commoner. Rights are often exercisable overdiffering areas of the common or over more than one common. In suchcases, the formula proposed under the amendment could cause endlessbickering. However, I am still thinking about the scenario that wasoutlined by the hon. Member for South-East Cambridgeshire on Tuesdayand, if I come up with a magical solution, I will offer it onReport.

David Maclean (Penrith and The Border, Conservative)

I beg to move amendment No. 105, in schedule 1,page 33, line 45, leave out ‘and his consentobtained,'.

Michael Weir (Spokesperson (Work & Pensions; Trade & Industry); Angus, Scottish National Party)

With this it will be convenient to discussamendment

No. 63, inschedule 1, page 34, line 3, at endinsert

‘including provision thatthe appropriate national authority may deem that the consent of theowner of the land has been obtained where it appears to the authoritythat such consent has been withheldunreasonably.'.

David Maclean (Penrith and The Border, Conservative)

We now come to one of the most crucial amendmentson the amendment paper, and that is not just my arrogant opinion, butthat of the Federation of Cumbria Commoners which the Minister waspleased to praise earlier for issuing excellent guidance. He said thathe was keen to follow that guidance so I hope that he will be keen alsoto follow its guidance and advice on theamendment.

Theamendment seeks to delete: “and his consent obtained”.That means that the owner of the land, who in 90 per cent. of caseswill be the lord of the manor, will have his consent deleted. He wouldhave to be notified, but would not have to consent. Why am I doingthis? I have two reasons. Never before has a lord of the manor orlandowner had the legal right to consent to atransfer—

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I am grateful to the right hon. Gentleman forgiving way, particularly as he has only just begun his argument. Incase something irritating happens and delays us discussing the matterfurther, I shall say now that I am actively considering the amendment.If we do something about it, we would need the consent of the Lords.Perhaps he might help facilitate that. I shall flesh that out if I havetime to respond more fully, but I thought that I would let him know atan early stage that I am sympathetic to hisargument.

David Maclean (Penrith and The Border, Conservative)

I am delighted that the Minister is sympatheticand therefore I will not press my argument any further.

I hope that the Minister willagree that his colleagues in the Lords should be willing also to acceptit. I know that they have a different view, perhaps because they havelarge landholding and grouse-shooting interests unlike the commoners. Iam delighted that a Labour Government will at last back the commonersover those with big vested shooting interests. I support the right ofpeople to manage their grouse moors and to shoot on them, but theyshould be paying the market price for buying up commoners’rights. If I had such a veto and was a grouse-owning landlord I wouldveto every transfer of rights. The rights would then become worthlessand I would buy them up for a song myself. We need to avoid that and Iam delighted that the Minister has said that he basically accepts thespirit of the amendment and will do something about it onReport.

I am slightlyout of sync with my hon. Friend the Member for South-EastCambridgeshire and his amendment because I believe that it would bedifficult to prove “unreasonably”. If I owned the rights,it would not, in my view, be unreasonable to object to their transferbecause I wanted to buy them myself. So my amendment goes slightlyfurther than that of my hon. Friend, but I am delighted that inprinciple the Minister might be willing to accept it, or something likeit.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I advise the right hon. Gentleman that I am morelikely to accept the amendment from his hon. Friend the Member forSouth-East Cambridgeshire, but that is something that we can discuss.We can correspond and possibly even meet up to do so.

I expressed nervousness aboutthe other place. The Bill is the result of a compromise achieved in theother place and if we are to push further we need to be confident thatwe do not start parliamentary ping-pong. I am sure that none of uswould likethat.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

I do not want to detain the Committee, but I wouldlike to put something on the record. Obviously if the Minister acceptsmy amendment I would be very happy, but I would be equally happy withthat of my right hon. Friend. The principle is that we have bothidentified a key problem that needs to be addressed, and I, too, wouldbe happy to negotiate with our friends in the other place ifnecessary.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

That is all very helpful. The sensible thing wouldbe for me to correspond with the right hon. and hon. Gentlemen, copyingin other Committee members, in the run-up to Report to ensure that wecan achieve a successfulconsensus.

David Maclean (Penrith and The Border, Conservative)

I would not say that a compromise was reached inthe other place; we just could not get the votes to go as far as wewanted to. It is refreshing and interesting for a Labour Minister tosay, “The view in the Lords must prevail; we cannot upsetthem”. That is an intriguing thing to happen in thisCommittee.

I hopethat if the Minister and the Committee are in agreement, the primacy ofthe Commons might actually prevail on this occasion. We will do ourbest to persuade those in the Lords who might be taking the Tory whipthat this is the way in which we wish to proceed. However, if on Reportthe Minister brings forward my amendment, or deletes the relevantwords, and the Commons votes overwhelming for it, I am certain thatping-pong will not last long before their lordships agree to the senseof what the Commons has done. I beg to ask leave to withdraw theamendment.