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

I remind the Committee that with this we arediscussing the following amendments:

No. 55, in clause 38, page 21,line 31, after ‘of', insert‘permanent'.

No.56, in clause 38, page 21, line 33, at endinsert—

‘(d) the parking ofvehicles used asaccommodation.'.

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

I was talking about electric fencingwhen we stopped, and I hope that I had said enough to persuade theCommittee and the hon. Member for South-East Cambridgeshire (Mr. Paice)that electric fencing can be just as much of an impediment to access aspermanent fencing. We remain concerned that we should not exclude itspecifically.

I wastalking about amendment No. 55 and the definitional problems that theword “permanent” might present. In any case, we do notsubscribe to the premise that what one might call temporary fencingshould simply be left out of the scope of the controls.

I have a note in respect of thecontribution from my hon. Friend the Member for Stroud (Mr. Drew), whoI am pleased to see returning to his place, that says that we all knowof cases where stables on sleds are claimed to be temporary underplanning legislation but remain in place for years. I personally wasnot familiar with stables on sleds, but there are all sorts of ways ofconfusing the notion of things being temporary or permanent. We need totreat the whole subject with some care.

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

I shall notdelay matters, but given that the Minister has just said that theamendments do not find favour with him, could he tell the Committeewhether it is possible to fast-track such applications? In other words,what is involved in getting the necessary consent, how long will ittake and what is the cost involved?

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

I am grateful for that question. Recently, anexcellent code of practice was published with endorsement from variousbodies including English Nature, the Countryside Agency, the NationalTrust and the Open Spaces Society. It sets out useful guidelines on howcontroversy can be minimised and co-operative working maximised whenphysical changes such as fencing on a common are being contemplated sothat that fast-tracking can occur. We will be considering andconsulting on whether the power in clause 43 should be used to exemptworks of any particular character from the clause 38controls.

I noted,for example, the comments from the hon. Member for Meirionnydd NantConwy (Mr. Llwyd) about restocking after foot and mouth disease andabout hefted flocks. It might be possible—I do notknow—to use clause 43 to make some exemptions.

Generally, we cannot sensiblyput fast-tracking on the face of the Bill. We want to ensure that theprocedures are appropriate and proportional. Views differ widely aboutwhether works are beneficial and a fast-track system per se mightamount to pre-judging the merits of an application and run the risk ofunfairly sidelining one of the those views. We hope that we have theright balance and that the use of the code of practice willhelp.

Philip Dunne (Ludlow, Conservative)

I am grateful for theopportunity to serve under your chairmanship,Mr.Weir.

I want to drawto the Minister’s attention to a case just outside myconstituency, at Llynclys common in North Shropshire. An applicationwas made by the Shropshire Wildlife Trust, which manages part of thecommon, to erect fencing to protect biodiversity and to reintroducegrazing after the common had been under-grazed for a number of years.It took a total of three years to get the necessary consents, includingthe consent of the Secretary of State, and the process was eventuallycompleted in 1998. Obviously, it is conceivable that procedures havebeen speeded up in the past few years, but I have my doubts. Someguidance needs to be provided on the question of fast-tracking and howlong it will take in practice.

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

I am certainly interested in such examples, wherethe delays and periods of time taken to process applications areunacceptable. My officials and I would want to ensure that we can dealwith such issues as speedily as possible. If controversy has beenminimised at the point of application, that makes things considerablyeasier and moreachievable.

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

Before theMinister moves on to the last amendment in the group, which is slightlyseparate, I shall challenge him, having listened to what hesaid.

The Ministerdoes not seem to believe in any sort of de minimis situation, to repeata phrase that I used earlier. My right hon. Friend the Member forPenrith and The Border (David Maclean) referred to a temporary bit offencing to seal a hole in a wall during repair. Is it really theMinister’s view that everything, apart from any exemptions thathe may come up with under clause 43, should go to the Secretary ofState?  Fundamentally, I was trying to introduce a sense of proportion as towhich things must undergo the inevitable panoply of time andbureaucracy involved in going to the Minister or the Secretary ofState.

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

I understand that the hon. Gentleman’sintention is sound. I agree that we need to make things as efficient aspossible. As I said before lunch, it is very unlikely that trivial orinsignificant works on commons would be regarded as contraventions ofclause 38 as it is worded, because it uses the same wording as section194 of the Law of Property Act 1925. During the last 80 years, we havefound that there is effectively some de minimis, and the courts are notwilling to take action if frivolous, minor pieces of work are broughttothem.

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

But as the hon. Member for Meirionnydd Nant Conwysaid this morning, we do not want to find out whether the court willact on it. By the time such a case gets to the court because somebodyhas raised a complaint, the commons association or whoever did thatminimal work has gone to the huge cost of employing legal advice andrepresentation, not to mention the cost to the public purse oforganising the court. We are trying to avoid all that. Simply sayingthat the court will not listen to the complainant and will find againstthem rather than the person who did the work is not really the samething. We are trying to prevent that situation from arising in thefirstplace.

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

I have no desire for people to go to court unlessthey need to. The balance of judgment is whether the Committee believesthat a great queue of people are waiting for the opportunity to reportlandowners to court for undertaking the most trivial of works, and thatwe therefore need to pin the matter down in legislation, or whether itbelieves that we need to keep our present flexibility and therÃ(c)gime that has served for the past 80 years. To get into theproblems of defining words such as “permanent”, inrespect of fencing, puts the balance in the wrongplace.

David Drew (Stroud, Labour)

I am now in thefortuitous position of having the National Trust briefing, which I didnot have earlier, so I have greater sympathy with what the hon. Memberfor South-East Cambridgeshire is trying to do. As the right hon. Memberfor Penrith and The Border said, the issue is the definition of“permanent”. I could be persuaded if there were a way todefine what is likely to be referred to the Secretary of State withoutusing the word “permanent”. That sounds as though itwould not allow any discretion, and I always prefer to avoid going tocourt. The Minister might be able to consider that. Surely a positioncan be arrived at between mine—I want some greaterprotection—and that of the Opposition, who want to allow work tobe done without going to somebody further up theline.

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

A position can be arrived at. It can be arrived atby using clause 43. If we can identify a form of fencing, for example,that does not prejudice the open character of the commons but achievesthe sort of effect that we have discussed—protectingbiodiversity or protecting people from falling down deep holes inCumbria—it might be appropriate to  make a blanket exemption through clause 43 for that sort of work. Thatis why I am talking about flexibility, which the clauseprovides.

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

Would that include the possibility of a timescale? Does the Minister envisage that clause 43 will exemptworks—an electric fence, for example—that is only therefor six months? Could a time scale be part of anexemption?

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

I can perhaps reflect on that, and get someadvice about it. You never know, I might come up with an answer beforetoo long, or by the time we come to clause 43, given that we are nowdiscussing clause 38. We shall see. We shall have time to have anotherlook at the matter when we have finished the Committeestage.

Amendment No.56 is an ingenious proposal. I am tempted to say, “Nicetry,” but that would trivialise what I know is a seriousproblem, especially in respect of Travellers’ vehicles. Iimagine that the majority of Committee members would sympathise withthe wish to deal with such problems when they occur and powers are inplace to enable local authorities to tackle them. For example, localauthorities can make byelaws, which are regulated under the Inclosure Acts or use their own local Acts. They may even make use of the offenceagainst camping on urban commons under section 193 of the Law ofProperty Act 1925.

Amore recent measure, part V of the Criminal Justice and Public OrderAct 1994, especially sections 62A to 62D, also deals specifically withthe problem. Those provisions were inserted into the 1994 Act by theAntisocial Behaviour Act 2003 and create new powers and procedures fora senior police officer to remove such vehicles from the land inappropriate circumstances. Section 62D ensures that the powers areexercisable specifically on common land. They have been available sinceFebruary 2004 and I am sure that members of the Committee willencourage their local authorities to use them.

We all want new measures to bein statute, but the problems arise when local authorities do not usethem. I am not enthusiastic about adding more measures if localauthorities are not using the existing legislationadequately.

The hon.Member for North Cornwall (Mr. Rogerson) raised the matter ofvehicles advertising things. I agree with the hon. Member forMeirionnydd Nant Conwy that it is probably a matter for the planningauthority and the planning rÃ(c)gime, and happily I am notresponsible for it.

The hon. Member for MeirionnyddNant Conwy also mentioned 4x4 vehicles. Works that present noimpediment to able-bodied people in trying to address the problem mightnevertheless impede the disabled; other works might impede horseriders, those exercising common rights and, dare I say it, even thosewho are lawfully allowed to drive on the commons. I argue that theclause as drafted ensures that all these issues are considered and donot get overlooked. However, perhaps someone will come up with aningenious device that will put a constraint on 4x4s if they are causinga problem and churning up the common, but allow the other users, whomwe want to  be able to enjoy the commons, to do so. If such a device is found and isseen consistently to work, clause 43 can be used in that respect.Exemptions will be for minor and temporary works, so a time scale isinherent in the concept that lies behind clause 43. I hope that thathelps the hon. Gentleman.

On the matterof mineral workings, which the hon. Member for Meirionnydd Nant Conwyraised, consent is needed for almost all significant works on commons.We consulted with the industry before removing the general exemptionthat was granted 80 years ago when works control on commons as a wholewas first introduced, but which we cannot now justify sustaining.Clause 38 consent will not be needed for mineral workings that alreadyhave planning permission when the Bill becomes law, provided that theterms of the permission are complied with. That is so even if the timelimit for implementation of the permission is extended. I hope thatthat helps the hon. Gentleman and I also hope that, on that basis, theamendments will be withdrawn.

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

I shall not detain the Committee by going back over amendments Nos. 54 and 55; we have probably gone as far as we can on those two. I understand the Minister’s points, but I hope that we can find a way through clause 43 to ensure that we do not have to have recourse to law to deal with what I would consider to be vexatious or minimal issues—those brought by somebody who has a bee in his bonnet and wants to pursue it. It is all very well to say that the courts do not have to find for the complainant; that is small comfort for a defendant who has been caused a lot of trouble, inconvenience and cost. Perhaps we can return to that under clause 43 or outside the Committee. If we cannot, we will have to do so on Report, because important issues arise from the temporary nature of some actions.

On amendment No. 56, which concerns Travellers, I am glad that the Minister did not read out the first comment that he was going to make. That would have trivialised an important situation. As one of many Members who have such problems, I am very familiar with the legislation. It is easy for a Minister to read out all the legislation that exists, but some of us know that it does not work like that on the ground. The 1994 Act, which my right hon. Friend the Member for Penrith and The Border piloted through the Committee stage as Minister of State in the Home Office, made significant changes, and as shadow Minister for the police I was instrumental in persuading the Government to make further changes in the context of the Anti-social Behaviour Act 2003.

As far as common law is concerned, the lord of the manor is still required to agree the removal of Travellers before the police can do anything. That is often the stumbling block, particularly if he is not easily contactable or, for some reason, is unwilling to take action. I am simply trying to underline the fact that the situation is illegal and there are still serious issues to be addressed. At this very moment, there are commons in my constituency that have Travellers on  them, and there are serious difficulties in removing them, despite all the attempts to legislate. We should not trivialise the issue in any way.

We have had a good debate on an important matter, and there are further amendments to be debated under this clause, so I beg to ask leave to withdraw the amendment.

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. 9, in clause 38, page 22, line 7, leave out from ‘are' to end of line 8 and insert

‘carried out under a power conferred in relation to that particular land by or under any enactment;'

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

With this it will be convenient to discuss Government amendments Nos. 10 to 13.

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

I will attempt to be brief. Normally, under clause 38, proposed works that would impede access to or over common land would need the prior consent of the national authority. Such works might include fencing, building, surfacing or earth works. Subsections (6)(a) and (6)(b) exempt a particular type of work from that requirement. Amendments Nos. 9 and 10 are designed to emphasise the fact that in order to be exempt in that way, works must be carried out under a power conferred by or under an enactment—for example, those undertaken by a statutory board of conservators. Amendment No. 12 is consequential.

Amendment No. 11 relates to commons management schemes made under the Metropolitan Commons Act 1866 or the Commons Act 1899. Essentially, such schemes give conservators in the first case, or district councils in the second, powers to manage commons for public benefit. Clause 38(6)(c) exempts works authorised under such schemes from national authority consent unless consent is required by the scheme itself. Since drafting we have discovered that existing schemes are not consistent in the way that they treat particular types of work such as erecting buildings, so the amendment makes the position on consent consistent across such cases. Amendment No. 13 is a technical amendment to put it beyond any doubt that, as for consents under the current works control regime, clause 38 consent is free-standing and does not affect other rights or constraints that may have a bearing on the lawfulness of the works proposed.

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

I beg to move amendment No. 57, in clause 38, page 22, line 16, at end insert—

‘( ) works necessary to comply with management agreements between a statutory commons association and a public body.'.

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

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

No. 58, in clause 38, page 22, line 16, at end insert—

‘( ) works which have been agreed by a statutory commons association as necessary for the welfare of animals.'.

No. 59, in clause 38, page 22, line 16, at end insert—

‘( ) works which have been agreed by a statutory commons association as necessary to prevent the unlawful access of vehicles onto the common.'.

No. 60, in clause 43, page 25, line 4, at end insert—

‘(e) the welfare of animals.'.

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

This group follows on from the group that we were discussing a few moments ago. The intention is the same. It is not to undermine the role of the national authority but to minimise unnecessary intervention and bureaucracy in order to speed up the process of management of the commons. I have no doubt that the Minister will again refer us to clause 43; as it has no amendments, we may have a long debate on that clause when we reach it. I am seeking to amend subsection (6), as opposed to subsections (2) and (3) in the previous group. I confess to being at somewhat of a loss as to the difference between this and clause 43. Subsection (6) states:

“The prohibition in subsection (1) does not apply to”

paragraphs (a), (b), (c) and (d). Clause 43 also lists circumstances where clause 38 is not to apply. I am not too sure what the distinction is: I might just as well have tabled these amendments to clause 43.

The four amendments address key areas. Amendment No. 57 is straightforward. It may well happen—indeed, it is probably desirable—that a statutory commons association makes an agreement with a public body, probably Natural England or the Countryside Council for Wales. The purpose of the amendment is to facilitate the carrying out of works under such an agreement. An agreement with a public body should be sufficient to give the works the go-ahead. Amendment No. 58 applies where a statutory commons association believes that an action is necessary for the welfare of animals. Amendment No. 60 seeks to insert a similar phrase in clause 43.

The House is always concerned about the welfare of animals. Even with the speeded-up process and the codes of practice, sometimes actions necessary to assist the welfare of animals need to be carried out very quickly. Whatever system is in place, it will not always be quick enough. Therefore if it is felt that a measure is needed to protect animals—predominantly grazing animals, but it may be wild animals—a decision of the statutory commons association should be sufficient.

Amendment No. 59 comes back to the point raised by the hon. Member for Meirionnydd Nant Conwy a few moments ago and which I mentioned in Second Reading. It is the issue of unlawful access of vehicles on to the common. I heard what the Minister said about disabled access. Obviously none of us wants to effectively debar the disabled from accessing commons in their appropriate vehicles. However, the Minister knows full well that there are a number of commons with serious problems of incursion. That might be illegal and the Law of Property Act 1925 might say that a person should not go more than 10 m off a highway, but we know that it happens. There are times  when the only way to stop that happening is to erect what some people call “tank traps” and “ditches” and all sorts of other impediments to vehicular access to a common. That has nothing to do with the right to roam or people walking and enjoying their rights of common, but relates to people taking vehicles on to the common, which is often to the detriment of other users.

I hope that the Minister will go away and think in more detail about the matter because there needs to be provision for such measures when local people agree that it is necessary in order to protect the rights of the vast majority—the legal users of the common, whether they be holders of commons rights, walkers or anybody else who wishes to access the common lawfully.

I hope that the Minister will understand that the amendments are designed to be constructive and helpful, to reduce bureaucracy and to assist works that protect our commons, rather than those that hinder them. I hope therefore that he will look favourably upon, if not the fine detail, at least the principles behind them, particularly on the issue of unlawful vehicular access. I hope that he will agree to go away and reflect further, because clearly I am not the sole proponent of that view.

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

I have always reflected carefully on everything that the hon. Member for South-East Cambridgeshire says, and I will continue to do so.

The hon. Gentleman asked about the distinction between the exemptions under clause 38 and those under clause 43. Under clause 38, those exemptions are automatic—the regime will not apply, per se—whereas clause 43 provides the national authority with the power to exempt particular categories of works by order subject to the negative resolution procedure. I hope that that helps to set out the difference.

Clause 38(6) gives a global exemption from consent only to works carried out under statutory powers. Those must relate to either the common in question or common land in general. For example, such powers might be exercised by a board of conservators, a local authority or a statutory undertaker. Works carried out or organised by a commons association using powers conferred under the Bill are excluded specifically from the exemption because commons associations are not required or even intended to be fully representative bodies, as was discussed on Tuesday during our deliberations on the amendments tabled by my hon. Friend the Member for Stroud. Often they represent only those with a legal interest in the land because of the limited nature of the functions that can be conferred on them under part 2 of the Bill.

It would be inappropriate for the Bill to give commons associations carte blanche to undertake particular types of works on a common because they are not fully representative. For example, management agreements might envisage extensive lengths of fencing to separate areas of different grazing intensity, but it would not be right for the Bill to rubber stamp such works by associations if they would impede access to a common, or to allow them to make agreements that rely on such works. Those proposed works should receive the same scrutiny as they would if they were proposed by the owner of the land.

On animal welfare and vehicular access, the examples given in this debate and elsewhere of why certain works might be needed for animal welfare reasons reinforce, to my mind, the need for such works to receive careful scrutiny. For example, using fencing to channel animals away from recreational hot spots, or to keep them from straying on to roads could have a significant and long-lasting effect on the open and unenclosed nature of commons about which I talked. Proposed work on shelters or feed stations for animals is of a scale and significance that should receive proper scrutiny through the consent rÃ(c)gime and I am resistant to doing anything that threatens animal welfare.

I responded earlier to the hon. Member for Meirionnydd Nant Conwy on vehicle access and there is not much to add. I questioned my officials when I had read the briefing from the Country Land and Business Association which mentions tank traps. I am satisfied that it will be possible to use clause 43 as and when such devices come forward so that they do not prejudice disabled horse riders and others who want legitimate access. I hope that the Committee will be equally satisfied.

We shall resist amendment No. 60 for similar reasons. We intend to consult widely on whether and how we should use the power in clause 43 to exempt particular types of work from the regime, but we are clear, as I said earlier, that we will use it only in relation to minor or temporary work. The sort of work that the hon. Gentleman has in mind is significant and potentially controversial in its effect on a common and its use by others. As I said, such work needs proper scrutiny and I hope that the hon. Gentleman will withdraw his amendment.

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

I will not prolong the Committee’s consideration. I have made my points and the Minister understands that there is concern on the Opposition Benches about the general impact of clause 38 on sensible measures that people may feel are necessary and about the need to reduce what appears to be a massive sledgehammer to crack a nut: having to go to the Secretary of State for approval for virtually everything. That is what we are trying to remove.

I am sure that the Minister will have caused further debate on clause 43. We may return to some of the issues then and, I suspect, on Report. In the meantime, I beg to ask leave to withdraw the amendment.