Schedule 1 — Authorised severance

Orders of the Day – in the House of Commons at 4:30 pm on 29th June 2006.

Alert me about debates like this

Amendments made: No. 85, in page 34, line 8, leave out 'association' and insert 'council'.

No. 86, in page 34, line 19, leave out 'association' and insert 'council'.

No. 87, in page 34, line 32, leave out 'association' and insert 'council'.

No. 88, in page 34, line 33, leave out 'association' and insert 'council'.

No. 89, in page 34, line 35, leave out 'association' and insert 'council'.

No. 90, in page 35, line 2, leave out 'association' and insert 'council'.

No. 91, in page 35, line 17, leave out 'association' and insert 'council'.— [ Mr. Watts. ]

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss Government amendments Nos. 92 to 94.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee), Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

I suspect that I have been struck off the English Nature cocktail party list for the foreseeable future.

I will use the short speech rather than the long speech that I have with me today. It was drafted for me by the Federation of Cumbria Commoners, and I make no apology for that; it will be one of the better speeches that I have made on the Bill, if I stick to the script.

First I pay tribute to the Minister, and particularly to his civil servants, who have been assiduous in paying attention to and trying to balance the different views of commoners but paying attention to what the Federation of Cumbrian Commoners had to say. They visited the area at least twice to obtain indepth knowledge of how the commons are run.

I know it is a common view among farmers that no one in the Rural Payments Agency or the Department for Environment, Food and Rural Affairs has ever seen a cow or a sheep, but those I have talked to in Cumbria are very appreciative of the state of knowledge of the DEFRA civil servants who have been dealing with the Bill. They should be promoted to the bananas directorate, which I understand involves a nice bit of foreign travel. They cannot go to the Wine Standards Board; that is another good number, but the Department is giving it away to the Food Standards Agency.

Amendment No. 115 is an important little amendment. It is not just a technical one, and it is not an amendment in the style of my late right hon. Friend Eric Forth MP, who would have always moved amendments of this nature. The federation says that it is strongly in favour of this amendment because it ensures that there is flexibility as to whether or not owners' consent will be required if an order is issued allowing local severance.

This is a compromise on my part. In Committee I strongly took the view that this part of the clause should be deleted, that there should be no circumstances where the Government should have this power, and that owners' consent should never, ever be required. I now accept that this is a sensible compromise that does not tie the Minister's hands either way.

The Cumbrian commoners accept that there is differing practice across the country and the Bill deals with that through not making severance indiscriminately available. Their concern is to make sure that an order works if and when it is made. Without the amendment, there is a risk that it will not. As the Bill stands, an order allowing local severance is of little value, because it requires the owner of the soil of the common to consent to the transfer and it will rarely be in the owner's interest to give that consent.

In Cumbria, severance has been commonplace for many decades without owner's consent. My amendment will ensure that if an order is made allowing severance on a local basis, the national authority will not have to require the owner's consent. It may or may not decide to do so, depending on the particular situation and having regard to any representations made to it.

The relationship between the owner of the soil and the owner of common rights is not the same as that captured in landlord and tenant legislation. They both have freehold interests. Having one person restricting the property rights of another is quite different from the state licensing the exercise of property rights—for example, through planning laws. It may even be a breach of human rights legislation to give one person the right to interfere with the rights of ownership of another.

The Government have tabled an amendment that would deem that consent has been given if it is considered to have been unreasonably withheld by the owner. That is not adequate by itself. In many cases, the cost of fighting an owner's veto will exceed the value of the transaction to the commoner. From the perspective of the Cumbrian commoners, the absolute requirement for consent in effect turns the clock back to a feudal era. It is inappropriate for the 21st century.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

In many cases, those common rights have considerable financial value in the sense that, if a farm is sold, the common rights are sometimes sold separately. If the Bill is not amended, it will mean that somebody who paid additionally for those common rights could lose a substantial amount of that value when they came to sell them again.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee), Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

That is absolutely right. The rights would have little value then. I perfectly respect those who manage our countryside and have shooting rights, but their interests are different from the interests of small farmers and commoners. Quite simply, if I were the lord of the manor and I had the shooting rights, I would be the nasty sort who would veto every single transfer. The rights then become valueless and I buy them up cheaply and improve my own shooting rights. That is a legitimate thing for the person with the shooting rights to seek to do, but the House of Commons should not make it easier for that person by devaluing the value of the rights. If someone wants to buy up the rights of grazing to improve his shooting, let him do so, but let him, or her, do so at full market value. The amendment permits an even playing field. People can buy up the rights if they want to and the owner can sell them at the commercial rate.

We have given the Minister flexibility. I understand that he might be sympathetic to the amendment. I have checked with our Front-Bench spokesman in the other place and she is content, so I am confident that we will not have to deal with the matter again in this Chamber. I implore the Minister to grasp the nettle and ensure that there is fair play for all who are involved in the management of the countryside.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

Unusually, I am going to cross swords slightly with my right hon. Friend David Maclean. He well knows that the current phrasing of the Bill is the result of a lot of discussion in the other place, where the Bill started its proceedings, and stemmed from concern that—picking up on the point that he made—those who have sporting interests on the moors, and particularly on the Yorkshire moors, would find them seriously damaged if the rights were sold or transferred in a way that was not helpful overall. There was a lot of discussion in the other place and that is how the current words came to be included. I fully recognise—as I am sure that he will acknowledge that I did in Committee—that to give the landowner the absolute right of veto is wrong. That is why, in Committee, I proposed moving forward on the basis that, if the landowner unreasonably withheld consent, the Minister should be able to override that. I remain of that view, so I welcome Government amendments Nos. 92 to 94. The question is whether we need to go a step further, as my right hon. Friend proposes.

As I read the Government amendments, they say that if a Minister feels that a landowner has unreasonably withheld consent, that can be overridden. I should point out to my right hon. Friend that we will be considering few such cases in the future because the Bill is designed to end the principle of severance, rather than to allow severance. The Minister would be required to issue an order before severance could take place. Under the Government amendments, he would then have to consider whether consent had been unreasonably withheld.

The Bill already requires the Minister to consult everyone, including the owners of the land or their representatives. My right hon. Friend's amendment relates to the measure that says that the Minister "must" make provision for whether the landowner has given consent. I am not sure whether the extra step of changing the word "must" to "may" is really necessary. I take the view—this is in some ways where my right hon. Friend and I slightly disagree—that a landowner is a property owner with certain rights. Yes, he would get consulted, but he should have a bit more say than that. I was happy with the compromise that was agreed among the different views in another place, which is represented by the Government amendments, but I am not entirely convinced that the Government would be right to accept the word "may" instead of "must".

If the Minister were to accept my right hon. Friend's amendment, he would obviously take account of the geographical location of the individual common in question when making an order, and of where the rights to the common pertained. He would also take account of whether the location was an area such as Cumbria, where the landowner's consent would not be especially relevant, an area on the other side of the Pennines, or a place such as the constituency of my hon. Friend Mr. Atkinson. However, my right hon. Friend's amendment would give the Minister more discretion than the Government amendments.

My right hon. Friend has expressed concern in conversations with us about giving the Minister discretion to decide what unreasonably withheld consent is. However, his amendment would give the Minister even more discretion, not less. It is for that reason that I have yet to be convinced of it. I am sure that the Minister will make his views clear. I do not for a moment suggest that we will divide the House if he wishes to accept the amendment, but I am certainly not convinced that everyone in the other place will be happy with it. If the amendment goes forward to the other place, we will have to see what it decides. It would be a pity if the huge degree of consensus on the Bill overall, to which we will refer on Third Reading, was lost on this matter, but I fear that that could be the case. I look forward to hearing what the Minister has to say and finding out how he will respond to a tricky situation.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham 4:45 pm, 29th June 2006

I speak in support of my right hon. Friend David Maclean. It was said earlier that everyone has a slightly different vision of what a common is. Some see a common as an urban common, while others would think of a large upland common. My right hon. Friend and I share an identical type of common: large upland commons covering tens of thousands of acres. The situation for such commons is different from that in other parts of the country.

I agreed with what my right hon. Friend said about the way in which officials have worked hard to try to solve difficult problems, given that every common in various parts of the country has a different culture. There is no doubt that our upland commons in the north have a culture different from others. The difference for those in the north is this business of value with severance, and that is crucial. In normal circumstances, there is a value for a farm with attached common rights, but the value often increases if common rights can be sold separately from the dominant farm. Sometimes the value of the dominant farm will be different. In some circumstances it may be greater now without the commons. In other instances, people may wish to acquire the rights of the common to increase their grazing rights. It is a complicated matter and one where there is monetary value. If we do not accept the amendments, we will be devaluing the assets of farmers who have bought common rights separately as a separate transaction. That is wrong. I do not want to end the sense of compromise that we have, but this is a difficult issue. I would give some support to the amendment.

Photo of Barry Gardiner Barry Gardiner Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Biodiversity, Landscape and Rural Affairs)

Government amendments Nos. 92 to 94 revisit the provision in paragraph 3 of schedule 1 about the permanent severance of rights of common. My starting point is that most grazing rights would never have been severable were it not for the unintended effect of registration under the Commons Registration Act 1965. Clause 9 reinstates the general prohibition on severance. Schedule 1 gives effect to some exceptions.

On Third Reading in another place, we responded to calls from Lord Inglewood and others to introduce a power for the national authority to enable permanent severance on a designated common by order. In moving an amendment, my noble friend Lord Bach said that the powers were "a reserve power only". He added that that did not mean that we intended to use them, and said that there were no plans to do so. However, in Committee, Mr. Paice and David Maclean, when they were agreeing with each other, sought to temper the requirement that the owner of a common must consent to any individual act of severance.

We accept the argument advanced in Committee that an owner might exercise a veto for the wrong reasons—for example, to secure a financial inducement—and the amendment enables us to provide in the order that consents must not be unreasonably withheld.

I move on to amendment No. 115. This has been an extremely good-natured debate. I trust that I will be forgiven if I savour this moment and this amendment and what is going on over on the Opposition Benches. As of this morning, I have had two separate speeches ready for the amendment: one to accept it and one to reject it. I left Opposition Members to struggle out the issue between themselves, to see who could vie most for my attention.

The amendment tabled by the right hon. Member for Penrith and The Border would go rather further than the Government amendment. It would give the national authority discretion about whether to include a requirement for the owner's consent in any particular order. I have listened with care to the arguments advanced by the right hon. Gentleman. He represents the interests of his constituents with great tenacity. He has written to me twice on these matters. The way in which he has presented his case, both in correspondence and orally today, does him great credit.

The right hon. Gentleman has made the trenchant point that severance of common rights in the hills of Cumbria is not a recent innovation. As is often the case in those parts, the rights have always been quantified. The law has always recognised that those rights may be severed. Were we to contemplate an order to permit continued severance in such areas, we would certainly want to have a discretion not to require the consent of the owner. That discretion is not available to us as the Bill stands.

We remain of the view that there should be a general prohibition on severance. Indeed, the right hon. Gentleman has accepted that we are talking of exceptional circumstances. Should we be minded to make an order under paragraph (3) permitting severance in any locality, we should have a power to impose a condition requiring the consent of the owner to any particular act of severance. That will ensure that severance does not interfere with the proper management of common where the owner continues to take an active interest.

We believe that the Government's amendments to paragraph (3) remain sensible and confer greater flexibility, but I am inclined to agree to the amendment of the right hon. Member for Penrith and The Border.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

The Minister is taking a constructive approach to these matters. I am sorry that we were not able to produce a clear answer to his confusion. It is unusual that a Minister comes to the House without a clear line. I think that he was coming to that when I rudely intervened on him. I look forward to what he has to say. Suffice it to say, whatever the conclusion of the Government and another place, that we all accept that there is an important role for the landowner, but it is right that there should be a power to ensure that it is not an absolute veto. There is not a great deal to be achieved either way.

Photo of Barry Gardiner Barry Gardiner Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Biodiversity, Landscape and Rural Affairs)

I am grateful to the hon. Gentleman, both for those remarks and for his note.

I commend the right hon. Member for Penrith and The Border on his legal skills. His amendment is of such a high standard that I am happy to accept it in its present form. If he decides not withdraw it, we would be pleased to add it to the Bill at this final hour. It is fitting, given that we have been considering arrangements for common lands that, in many cases, have been in existence for almost 1,000 years, that it should be a Labour Government who should ensure that the fight against feudalism and the striving for a classless society continue. I am delighted to accept the right hon. Gentleman's amendment, and I trust that he will not withdraw it.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee), Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

I am grateful to the Minister, both for his wise words, and for having the wisdom to make the right speech this afternoon. Naturally, I shall not withdraw the amendment, and I hope that we do not vote on it, as that is not necessary. I congratulate the Minister, at the close of our debate, on accepting the amendment. It is a long time since I have had an amendment accepted in the House, so I am slightly out of practice. I am grateful to the Minister for his kind words, but he should offer them not to me but to the Cumbrian Commoners Association, which is skilled and knowledgeable, because it has been dealing with commons for hundreds of years, and understands them. I am grateful that the Minister and his officials have listened to our point of view, and I assure him that we will not need to deal with the matter in the House for a considerable period. He has some flexibility available to him, but it he will be required to exercise his judgment only on rare occasions, and that is the way it should be.

Amendment agreed to.