Commons Bill [HL]

– in the House of Lords at 4:16 pm on 20th July 2005.

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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) 4:16 pm, 20th July 2005

My Lords, I beg to move that this Bill be now read a second time. Its purpose is to improve the management of common land in England and Wales. Common land is one of the ancient institutions in our country. It was a core component of the manorial system in Norman England, and shared grazing of some kind was probably widespread even before then. Today, common land remains important in the agricultural economy of many upland areas in England and Wales, but it is also a vital resource for recreation and biodiversity and a key element in the landscape of the countryside, as well as a cultural kingpin in many hill farming communities.

It is a rare occasion on which this House has an opportunity to debate the arcane depths of commons law. The previous government Bills on common land were in 1964 and, before that, 1908. I look forward to debating with noble Lords the exercise of rights of pannage and piscary, the importance of hefting, the principles of levancy and couchancy—that is how you pronounce it—and the origin of rights of common appendant and appurtenant. I can even tell your Lordships what those terms mean.

The Bill has had a long gestation. As long ago as 1958, the Royal Commission on Common Land recommended legislation to provide for three things—registration, public access, and improved management. The first of those recommendations led to the Commons Registration Act 1965, which was well meant but somewhat flawed and designed only as a short-term measure to identify and register common land and town or village greens. I note that the noble Earl, Lord Ferrers, who is not in his place—indeed, I did not tell him that I would refer to him—spoke at Second Reading on that in 1965.

The second recommendation—public access—was eventually delivered by the Countryside and Rights of Way Act 2000, which will have secured a public right of access to nearly all common land in England and Wales by the end of the year. But on the third recommendation—improved management—the aspirations of the royal commission remain unfulfilled. The Bill will deliver long-term improvements to the registers of common land and town or village greens, new mechanisms for the management of commons, and much-needed reforms to the controls on works and fencing on common land.

The Government have consulted extensively on new legislation. Consultation in 2000 was followed by the publication of a White Paper, the Common Land Policy Statement, in 2002. There has been a continual process of consultation and dialogue since, and we are grateful to all who participated in the consultations and seminars; their input has been invaluable in preparing the Bill.

I will now take noble Lords through a summary—a summary only, I promise—of the Bill. Part 1 deals with the registration of common land and greens. It greatly improves the registration system introduced under the 1965 Act. It makes similar reforms to the registers of both common land and greens, but for convenience, I will refer simply to the commons registers.

Clauses 1 to 5 require the registers prepared under the 1965 Act to continue to be kept by commons registration authorities. It applies to England and Wales, with certain exceptions, such as the New Forest and Epping Forest, which are subject to special legislation. Although there is common land in Scotland and Northern Ireland, the Bill does not apply to those countries because their historical, legal and management contexts are very different.

A key measure in this part is the requirement for the commons registers to be kept up-to-date. Clauses 6 to 13 require transactions affecting common rights to be registered in order to be effective. So, for example, if the owner of a right of common wishes to surrender that right to the owner of the common, the right will only be extinguished when the register is updated accordingly.

There is a particular point to which I would draw to the attention of the House. Most rights of common are traditionally attached to the land farmed by the commoner. Following a decision of the judicial committee of this House in 2001, commoners are entitled to dispose of rights of common independently from that land, thus severing the common right from the land to which it was originally attached. The local link between the commoners and the common may then be lost, since the rights can be sold to anyone, including farmers who live far away from the common and have no awareness of the local management practices.

Clause 9, therefore, prohibits the severance of rights of common, with limited exceptions. It is intended to have effect from the date of publication of the Bill, 28 June 2005, subject to the Bill receiving Royal Assent. The Government believe that retrospective legislation is necessary to prevent commoners from severing their rights prior to the Bill coming into force.

Clause 14 sets out criteria for registering land as a new town green or village green, where the land has been used by local people as of right for lawful sports and pastimes for a period of at least 20 years. It makes clear that a new green may be registered where the use of the land continues up to the time of the application for registration, or within a time specified in regulations. This will reverse the effect of a recent decision of the Court of Appeal, in what is known as the Trap Grounds case, which has made it practically impossible for a new green to be registered against the wishes of the landowner, despite 20 years of use.

Clauses 15 and 16 enable commons to be exchanged for another piece of land, whereby one piece of land can be freed of its status as common land and another piece of land can be registered in its place. However, the Secretary of State will consider the public interest before permitting such exchanges to take place.

Clause 18 provides for corrections to be made to the registers in certain circumstances. I should add that the Bill does not generally enable corrections to the number of rights registered under the 1965 Act. We recognise that many rights registered in the 1960s were excessive or inflated and, sometimes, out of all proportion to the capacity of the common. But we believe, as most stakeholders do, that we must move on and that reopening these registrations 35 years later would not be helpful in achieving better management of our commons.

I have already mentioned that the 1965 Act was flawed. Schedule 1 enables the rectification of certain mistakes in the commons registers that arose out of misguided or mistaken applications under that Act, or where applications were rejected because of a mistaken understanding of the law at that time. We believe that the Bill presents a balance in carefully defining limited criteria, both for the de-registration of registered land, and for the registration of new land.

Schedule 2 provides for a transitional period to register events occurring since the commons registers were compiled, thereby bringing the registers up to date.

Part 2 of the Bill deals with commons associations. At present, there is a lack of effective agricultural management on commons and many have suffered significant deterioration. Severe over-grazing has led to damage to the soil, biodiversity and landscape, which is reflected in the poor state of 43 per cent of England's commons that are sites of special scientific interest.

Part 2 will encourage better management of commons by enabling commoners, landowners and others to form statutory commons associations to manage agriculture. The primary purpose of commons associations will be to protect and promote sustainable agriculture on common land. The associations will function through majority voting. That will make it much easier to get agri-environment funding for common land, as an association will be able to enter into an agreement based on a majority vote rather than being frustrated by a few dissenting voices.

Clause 25 enables the Secretary of State or the National Assembly for Wales to establish commons associations by order. Orders will be made only in response to local demand: commons associations are not to be imposed from the top down, but cultivated from the bottom up. In particular, Clause 26 requires there to be substantial local support for an association to be established.

Individual establishment orders will set out the functions and administrative arrangements of each commons association, including how majority voting will work. Commons vary widely, so each association will be tailored to suit local circumstances. I intend to have a model establishment order ready for the Committee on the Bill in the autumn.

Clause 30 sets out the functions that may be conferred on a commons association. They include making rules on the management of agricultural activities, the exercise of common rights—such as controlling grazing where overgrazing is a problem—and the removal of livestock grazing unlawfully. Rules may provide that a breach is to be a criminal offence, but we intend that they will be subject to approval by the Secretary of State or Assembly.

We intend that each establishment order will specify the circumstances in which the association must seek the consent of landowners or other interests for certain agricultural activities. Our primary aim in this Part of the Bill is to empower associations to regulate activities relevant to sustainable agricultural management on commons. That is best achieved through majority voting on decisions that are then binding on everyone, but we recognise that landowners' rights to manage their own land must be respected, and we will hold further meetings with stakeholders so that we can achieve the appropriate balance.

Part 3 modernises and streamlines existing controls on works on common land, which are primarily found in Section 194 of the Law of Property Act 1925, as many ex-law students will recall. Those controls provide that works that restrict access may not be undertaken on common land without the consent of the Secretary of State or the National Assembly. We have taken the opportunity to make three significant changes to the controls.

In the 1925 Act, controls apply to land that was subject to rights of common on 1 January 1926. Clause 36 instead provides that controls on works will apply to all registered common land. We believe that that will ensure significantly greater clarity. The Bill also brings commons subject to other legislation, metropolitan commons and National Trust commons into the modernised regime.

The second change is that we have extended the powers to take action against unlawful works on commons. At present, that power is available to the landowner, the local authority and those with a legal interest in the land, such as commoners. Clause 39 extends that power to include anyone who has a right of access to the land and to commons associations.

Thirdly, the controls will extend to new mineral workings. Such works were exempted from the controls contained in the 1925 Act, but we see no reason why, in 2005, potentially significant development of that kind should continue to be exempt.

We have also taken the opportunity to modernise the procedures for applications. There are new criteria for determining applications, and we are introducing new powers to enable the Secretary of State or National Assembly to regulate the application process; impose conditions on a consent; charge fees for applications; delegate the decision-making powers to another person or body; and direct that certain persons or works should be excluded from the need for consent.

Part 3 also re-enacts existing powers for local authorities to act to protect common land with no known owner. It provides a power of last resort to certain public bodies to stop unauthorised agricultural activities causing damage on common land where neither the commoners nor land owners are able to prevent it.

Part 4 contains powers to amend other legislation to update references to common land and town or village greens to refer to "registered" common land.

I highlight the welcome that the Bill has received from many interested parties—I have correspondence with me from a number of them, and I am sure that other noble Lords do too—and from noble Lords themselves who have been kind enough to discuss the Bill with me and my officials before Second Reading.

The Bill cannot alone secure the continued vitality of our common land, but it will go a long way towards providing better management and protection for future generations. I commend the Bill to the House.

Moved, that the Bill be now read a second time.—(Lord Bach.)

Photo of Baroness Byford Baroness Byford Spokespersons In the Lords, Environment, Food & Rural Affairs 4:32 pm, 20th July 2005

My Lords, I thank the noble Lord, Lord Bach, for his introduction of the Bill. He has unravelled the complicated nature of the rules and legislation that has covered common land and the rights of common over such land since the Norman Conquest. I congratulate him on his clarity, which I am sure will assist us all in our endeavours. I also thank him for the briefing discussions we have had prior to this Second Reading.

Common land occupies some 549,000 hectares, 80 per cent of which is privately owned and 50 per cent designated as SSSIs, a significant percentage in England and Wales, particularly in the uplands, such as the north Pennines, Dartmoor and the Black Mountains. Over half England's common land is situated in Cumbria and North Yorkshire. It is clear that the management of the common land and its interrelationship with national parks, areas of outstanding natural beauty and SSSIs are important.

At the time of registration some 1,740 commons were in private ownerships, 679 had private owners for parts of the land, 1,230 were owned by parish and other councils and 431 were owned by a variety of organisations, including charities and trusts.

Many commons have multiple owners and, according to Defra, some 1,900 have no known owners. It is a fair task that we are undertaking. Of the 7,039 common land units in England, only 34.6 per cent had registered rights of common, and those commons accounted for nearly 88 per cent of the total area of common land.

We on these Benches support the improvement of the environmental conditions of common land and agree that in some circumstances greater collective action is required to strengthen the management of its use. We hope that commons that are currently being well managed will be left to continue with their successful working practices. I am sure the Minister agrees with me that, as he has previously said, flexibility in the approach to common land is key.

However, we are disappointed that the Bill before us is so skeletal and leaves so much to regulation. As he indicated, in 2000 the Government committed themselves in the rural White Paper to addressing this common land legislation and have subsequently had various stakeholder groups and working parties running through 2003 and 2004. Therefore, we hoped that by now, some five years on, the Government would at least present us with a complete Bill.

The first part of the Bill deals with registration of common land and town and village greens. Aspects that concern me are mainly related to the work of the registration authorities. These are county councils, unitary authorities, London boroughs and Welsh county and county borough councils.

There seems to be general agreement that the 1965 Act has not been successful. Whether that is because it was flawed legislation or because it was not used adequately is not as important as the consequence of its failure. I do not know, and perhaps the Minister can tell us, how many commons and greens are still disputed. Is there a backlog; if so, is it evenly spread across the authorities or do some have enormous problems and others few or none? Has the failure affected rural areas more than urban authorities? Are authorities with a large total area of common land worse affected than those with less?

In implementing the Bill, do authorities have adequate staff, with the necessary qualifications and experience, or will recruitment and retraining be the order of the day? Will the Minister outline the full consideration of the amount of additional work and the cost to local authorities that that will require? Does he realise that in many authorities the burden of work will fall on departments already grappling with the Licensing Act?

While on the question of local authorities, will the Minister address an issue of growing concern to many authorities? In an increasing number of cases in urban areas—for example, Sunderland, Richmond-upon-Thames and Oxford—the 20-year use rule (for walking dogs, for example) has been used by activists opposing housing proposals to enforce the registration as a village green of land that few reasonable people would view to be a village green. Plans to build affordable housing, which the Government are pressing on local authorities, have been frustrated. How will the Bill address that issue, and has the department made any assessment of the amount of land that might reasonably be registrable as a village green under the existing legislation and the risk that that might pose to housing needs?

The detail of the Bill will be examined closely in Committee, so we shall be able to dissect the rights and wrongs of creation, severance and the transfer of rights in gross. I am, however, intrigued that the question of computerisation occupies fewer than 15 lines of type. Experience in Defra, which the noble Lord will get used to, of the use of computers to monitor progress—for example, on foot and mouth disease, to assist in the registration of the cattle-tracing scheme or to streamline payments across the Rural Payments Agency—has not exactly been a bed of roses. The problems over the mapping exercise following the CROW Act have also been less than reassuring. I think that we shall need to spend time on Section 24.

Commons associations have been called for, in one form or another, for some time, and we support that. They are an obvious way to obtain the consensus necessary to get better management of commons to the advantage of both the environment and those with rights in their use. However, the Bill poses as many questions as it answers.

Do the Government envisage that an area of common will have its own association, as in Yarningale; will it be possible to have different bits with separate bodies, as in Yarningale north or Yarningale south; or will there be a case for a single association to cover an entire county or even a sub-region, as in Warwickshire or central West Midlands?

What is the position regarding the National Trust? There is apparently a potential conflict between the powers and duties of the trust under its Acts and the powers and duties of the statutory commons associations. Unless it is made clear that the National Trust Acts take precedence on trust-owned commons, the Bill could undermine the protection and promotion of the wider public interest, particularly in access and recreation, but also the conservation of the natural and cultural heritage.

Although we are assured that in practice the creation of the commons associations will be in response to local demand, which the Minister has recognised again, there is considerable central direction involved. I wonder whether, in order to meet government targets, we might find that locals are perhaps being "persuaded" to respond in the required fashion. Will the Minister confirm that? The Bill fails to determine the associations' remit or to go into detail about their membership. My noble friend the Duke of Montrose will refer to that in greater detail.

How will the Bill interact with the provisions in the Countryside and Rights of Way Act? I am particularly thinking of developments in rights of access to private property across common land by a vehicle. Many householders have already paid for the privilege. Many more presumably will be affected as new houses are built. Will the Minister assure us that no new interpretation of any part of the Bill will adversely affect the newly acquired rights of such residents? Will he also provide an indication of what legislation will take precedence? For instance, I believe that I am right in saying that some commons are used by members of the public for camping, lighting fires and playing ball games, whereas the CROW Act specifically prohibits those activities.

The first and second parts of the Bill rely heavily on the Government's old friend "regulation". Despite the regulation task force, the much vaunted government targets to reduce regulation and the obvious fatigue in the population at large with consultation, training and paperwork consequent on it, this Bill is riddled with regulation. For example, in Part 1, there are 16 subsections which begin with the words, "regulations may" and a further nine which use a phrase such as "regulations may provide": it appears 59 times in the Bill—and then there are the orders.

We cannot possibly scrutinise effectively a Bill which reveals so little about itself on the surface. Our suggested approach is for the Government to publish their regulations in draft before Committee. I am grateful to the Minister for indicating that that will happen. We approach a long Recess of three months. I would be grateful if those regulations could be forwarded to us at home in good time before we return in October.

There should also be guidance in advance of Committee on the probable level of fees that may be charged by registration authorities and commons associations, and on the costs and charges to be levied as part of the process of challenging existing records or applying to amend them.

The Bill is concerned with the management and protection of common land; that is, management for the sake of the environment and to promote sustainable agriculture, and protection to ensure that the public right of access is not diminished. We support the general intention, but have concerns about the degree to which the rights of owners may be subordinated to the demands of a small number of people, many of whom may not be local.

Also, we have particular concerns about and wish to see defined the meaning of "sustainable agriculture", which means different things to different people. We must be careful to strike the right balance between farming and conservation. Linked to that, I know that other Members of your Lordships' House will raise their concerns about how the Bill might affect shooting and fishing rights.

Throughout the Bill, the phrase "any person" recurs. Will the Minister tell us whether it is to be construed literally or whether it may be taken to mean an individual, a body of people or even a named body? Do the Government have any intention to filter the demands of any person to ensure that the legislation is not used in a frivolous or a malicious fashion?

My extensive postbag reveals that in general the Bill has widespread support, and in principle we support it too. However, many questions remain on the detail as well as several concerns on points of principle. We shall need to cover all those issues as we go through the Bill in Committee. In the mean time, however, I await the Minister's response to today's proceedings.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Environment, Food & Rural Affairs 4:45 pm, 20th July 2005

My Lords, I thank the Minister for introducing the Bill and for laying out its historic context. Even today, talk of making changes to legislation relating to common land or to rights of common can and does provoke strong feelings, particularly in rural communities. That is why I am looking forward to getting this Bill right. Although it is primarily technical in nature, amending the omissions and mistakes of past legislation, I believe that we form part of an historic tradition in trying to address these issues. Indeed, I share with the Minister the pleasure of sharing in, as he put it, "plumbing the arcane depths" when exploring the arcane language and its meaning. It continues to have great resonance. It refers to rights that are particular to certain localities and regions. I cite one example from my own parish which I will explore further in Committee, that of potwalloping, which takes place on Northam Common.

Land, and the rights and responsibilities of its ownership or use, lay at the heart of the Government's Countryside and Rights of Way Act 2000. All sides of the House recognised then that commons needed further legislation in their own right. Members on the Liberal Democrat Benches commend the Government for making time in their legislative schedule to address the failures of past legislation. It was recognised in 2000 that this needed to be done. We need to be able adequately to protect our common land, as well as the rights to it which continue to be exercised.

We warmly welcome the Bill, as do most NGOs and agencies and, indeed, all the correspondents I have heard from. We also welcome the fact that Defra has made it plain that it is still open to making improvements to the legislation. But I shall want to press the Government on whether they have recognised sufficiently the changing nature of the use of many commons.

Several questions arise on Part 1, including what will happen to unclaimed common land. I want to explore further in Committee the extent of such unclaimed land and how the Government see its future within the framework of this legislation. I refer also to the resourcing of those local authorities responsible for carrying out the work of registration. I am most familiar with county authorities. They are already overburdened in trying to meet the improvement requirements set out in the Countryside and Rights of Way Act 2000 using only meagre resources considering the enormous and historic nature of the work they are undertaking. I am sure that the Minister is also aware that the backlog of public inquiry work that has accrued since the passing of the CROW Act is enormous. If that work is multiplied many times by taking into account what is being faced by local authorities, he will recognise that the additional work involved in the registration of commons will need substantial further resources. The same staff simply cannot do any more than they do already.

Part 2 covers the management of common land. We welcome the setting up of statutory commons associations where it is felt that they are needed. Such management will be able to recognise the tensions between the needs of those with grazing rights, wildlife management and rights of public access. I am sure that plans can be developed to manage those conflicting needs so as to ensure the best possible outcome. But the Bill as drafted defines such outcomes in terms of "sustainable agriculture". That is far too narrow and I hope that we are successful in agreeing a much better definition.

It is clear that some commons will have to be managed especially for their wildlife value. The Minister has already acknowledged that many are not currently in good condition. However, some areas, particularly in Wales—about which my noble friend Lord Livsey will speak in detail—and the West Country, common grazing rights are critical to the existence of traditional farms, which may own only a small acreage of meadowland but will have extensive grazing rights. We are talking here not only about the importance of the wildlife on that common land but of the social and economic viability of some of our most fragile rural communities in some of our most environmentally sensitive areas.

So, while the Bill refers to over-grazing—which, I agree, historically has been a problem for many commons—against the background of the reform of the CAP under-grazing and no grazing is likely to become as much of an issue. It could be just as damaging to an SSSI which relies on a grazing regime because bracken and scrub can very quickly ruin a previously flower and butterfly-rich area.

Indeed, as highlighted on Monday in an article in the Independent, the number of butterflies could be a useful indicator for Defra about the health of the countryside. One of the department's current indicators as regards quality of life and farmland improvement is farmland birds whose numbers seem to have been turned around slightly by this year's figures. I suggest that at the Committee stage of the Bill we might introduce another indicator—that is, the number of butterflies on common land.

I draw to the Minister's attention the view of the National Trust. In its useful briefing it stated:

"It is important that SCAs have the flexibility to meet the future needs of society and are able to make the most of new business opportunities e.g. managing commons for flood management, water quality, carbon sequestration, public health and wellbeing".

I could not put it better. I agree with its examples of some things which are extremely important but are not mentioned anywhere and do not fall within the remit of sustainable agriculture.

We on these Benches are also concerned about the emphasis in the Bill on the influence and power of the national government agencies, particularly Natural England when it is formed. We shall question in Committee whether it is balanced sufficiently with local knowledge and local policies.

It will be important to explore the question of commons which are likely to be lost as a result of managed coastal realignment and rising sea levels. I appreciate that it may take the Minister some time to gather the information about which commons will be particularly affected, but the Bill needs to look forward and make provision for the likely serious results of climate change and the effect it will have on such commons.

Finally, I agree with the noble Baroness, Lady Byford, that vast swathes of the Bill are covered only by the word "regulation" at the moment. The Minister has indicated that he will bring forward one model establishment order. I hope that we will see more model regulations because, if we do not, we will certainly need to make detailed amendments to those parts of the Bill which we are unhappy to leave simply to regulation. In the mean time, I warmly welcome the Bill and look forward to working on it in Committee with the Minister and other noble Lords.

Photo of Lord Walpole Lord Walpole Crossbench 4:54 pm, 20th July 2005

My Lords, I also thank the Minister for his very clear introduction of the Bill. I apologise for speaking behind his shoulder.

My personal interest lies in the smaller commons in arable areas, which are environmentally very important as little islands for wildlife, especially in Norfolk. I tried to find out whether I had any pecuniary interest to declare in speaking today, as a county directory just before the war suggested that a certain common was owned by the Bishop of Norwich and my father—one at each end, that is, not shared. However, after checking with Norwich County Council yesterday, I found that there is absolutely no reference anywhere to the ownership of the common. So I do not believe I have any interest to declare. I have no doubt that it would be very expensive for me to hire a lawyer to find out.

I fear that that is typical of much of the registration that took place as a result of the 1965 Act, as the authorities and, as far as I am concerned, the counties were not obliged to follow up or check the areas of individual commons, to check that the list of owners was complete, or to check the number and rights of commoners or that commons were being managed in a suitable way.

I intend to be brief, as I am sure that others with much more experience than me will have much to say. Also I cannot go into detail about a visit to a local common by myself and my friend Mr Norman Lamb, the Member of Parliament for North Norfolk, as I believe the matter is sub judice. However, I shall say that the common in question was claimed by someone who did not appear, on any evidence shown to me, to have title to it. He went out of his way to fence the whole common, which is against any law relating to commons that I have ever heard of.

I feel that the Bill is a good start in rectifying many of the problems that have arisen. While I do not agree with every single word of it, I am sure that it will leave this House in a form that will be very helpful to those whose job it is, in the future, to protect and to ensure a good future for commons and wildlife. I was particularly encouraged by remarks made by a member of staff at Norfolk County Council to whom I spoke yesterday. She said that she was looking forward to being able to do her job more thoroughly. Indeed, many environmental and professional bodies have written to me saying the same thing.

However, I have one question for the Minister. Having read Part 3 carefully, how can a commons association, or whatever body manages a common, deal with Travellers who may turn up on a common? We all know that the usual laws for dealing with such a problem on private or public land are cumbersome and time-consuming and that considerable damage may be caused to an ecologically sensitive site before they are removed.

That is all I want to say now, but I can assure the Minister that I shall not be silent for further stages of the Bill.

Photo of Lord Clark of Windermere Lord Clark of Windermere Labour 4:57 pm, 20th July 2005

My Lords, in preparing my thoughts for the debate, I read a short history of common land and common land law. It brought it home to me how divisive the issue had been over the centuries, especially in your Lordships' House. It is interesting to see how the debate has changed from the early days of the 19th century, when it was about enclosure and the hardship that emanated from that. I thought that it was encapsulated by the doggerel of the poet at the time who said:

"The law doth punish man or woman who steals the goose from off the common, But sets the greater felon loose who steals the common from the goose".

That was the feeling at the time.

As the Minister has said, we have to move on, and we have moved on. In a sense, the debate is now more about how we balance the use of commons, many of them privately owned, with the demands of public enjoyment. I welcome the Bill as a step in that process. It allows us to modernise and to clarify. With the emphasis on public benefit, it takes us a long way forward.

Right from the beginning, I see, as the noble Baroness said, that it has traditionally been a divisive matter and that there is still potential for division. I declare an interest in the sense that I am clearly on one side. I happen to have been brought up in south Cumbria, where we had the great benefit of south Cumbria being run by the Lakes Urban District Council. I never realised why, but under Section 173 of the wonderful Act to which my noble friend referred—the Law of Property Act 1925—the public had access to all common lands in urban districts. So we could go where we wanted, and if we went a little further north or further afield we were again lucky because most of the other commons were covered by the National Trust legislation, which again allowed access. Of course, there were difficulties; the Cumbrian farmers had to learn to deal with them and, by and large, they did.

As we have looked at the debate over the years and moved from enclosures to public enjoyment, it is interesting to note that the county with the greatest proportion of common land in public ownership for access is Surrey. That is quite an unusual view of the rights of commoners.

I declare a non-pecuniary interest: I am vice-president of the Commons, Open Spaces and Footpaths Preservation Society and a former chairman. We are very proud to be the oldest amenity society in existence in England, and we claim credit on our stick, so to speak, for such victories as Hampstead Heath, Epping Forest, Hainault Forest and so many other open spaces in the metropolitan areas and other areas as well. We are delighted with the Countryside and Rights of Way Act 2000, which has been mentioned.

Having said that, I was quite struck by the latest journal of the Open Spaces Society. It said that the organisation's treasurer, who travelled 600 miles across an area that the Minister knows well, the east midlands, looking at common land in Lincolnshire and Leicestershire, was appalled that commons were lost under impenetrable scrub, a car park, farm storage, a Christmas tree plantation—not the Forestry Commission, I hope—and gardens, to name just a few things. This brought it home to me that we need an inventory of common land. We need to know what the position is. I hope that the Minister can discuss this with some of his colleagues in Defra and see if there is a way to produce ground rules or a map so we know where the common land is.

I very much welcome the Bill. It is a good Bill, although one or two aspects cause me concern as they do other noble Lords. In particular, I want to flag up something in the part of the Bill covering registration. I was rather surprised that it did not vest unclaimed common land in the local authorities. Defra's common land policy statement of 2002 proposed to enable the vesting of unclaimed enclosed common land into a suitable body. That proposal, which does not seem to be included in the Bill, would be a step forward.

Clause 39 refers to groups of persons taking action to remove works. It talks about local authorities and about eligible persons, and I welcome that. However, I am concerned about a point that has already been raised. Does that include corporate bodies and charities? We need clarification if we are to make this work and achieve good legislation.

Although the Bill can be improved it is, all in all, a good Bill, because it moves the debate forward and leads to clarification and modernisation. That is what I think the whole House wants.

Photo of Lord Patten Lord Patten Conservative 5:04 pm, 20th July 2005

My Lords, I am glad to follow the noble Lord, Lord Clark of Windermere. I think that his views of commons are slightly moulded by landscape in which he grew up—the heroic uplands of south Cumbria. My views derive from the rather more crowded southern part of the United Kingdom, but I certainly agree with him that we need a Domesday Book or a terrier nationally to set out exactly what is and what is not common land in due course, resources allowing.

I am sure that the Bill has been brought to fruition—its gestation has been positively elephantine—for the most benign reasons. No one could be more benign, I know, than the Minister in all his intentions. However, I think that all of us in this place know that, sometimes, Bills that become Acts for benign purposes are used later for purposes for which they were not wholly intended, and the effects turn out to be less benign. So I intend to address my comments this afternoon to those possibilities—a bit of futurology about what might happen when the Bill becomes law. That is all the more apposite since, as my noble friend Lady Byford on the Front Bench pointed out, so many of the provisions are yet to be unveiled to us. We do not know how the regulations are to be cast and how powerful they will turn out to be.

Whatever the benign purposes for which the Bill has been introduced, my concern is that, in an unfortunate reality, it could mark an undesirable watershed in the history of commons and even be used as a back door, in decades to come, to the incremental nationalisation of common lands through the steady, later use of the extended state powers that the Bill confers and the new roles of regulation and oversight that it gives to various "quangoiste" bodies, which, again, it is quite specific about.

Commons are ancient. They sometimes have forms and customs of organisation and rights that pre-date parliamentary democracy. They are peculiarly British and, often, are very untidy. The best description of that quality was given by Alexander Somerville, writing in 1844 in his book, The Whistler At The Plough. He had been to visit William Cobbett, that half-radical, half-conservative—not a bad mixture, to my mind—at his Surrey farmhouse when Surrey was more concerned with agriculture than lawn tennis. Somerville described the setting of Cobbett's farmhouse, at Normandy, near Ash, like this:

"In front lies a heathy common, in complete disorder as commons usually are".

That disorderliness is often part of the essential quality of commons. They should not be overregulated, prettified, packaged up or, worst of all, urbanised.

I worry about what might happen if more quangos or parastatal bodies of different sorts eventually get control of our common lands. I fear that they would soon be domesticated, criss-crossed with gravel paths, street lighting, bossy notices and all the rest of it, in the way in which our countryside is too often stealthily urbanised by people who cannot, unlike the Minister, tell their pannage from their estovers and want to create, essentially, a theme park Britain. That is not desirable.

So I have three major problems with the Bill. As the noble Lord readily assented, we are debating the Bill as drafted and not as it may be with regulations in due course. First, I am concerned about the powers to deregister common land and substitute parcels of new land. I appreciate that, when deregistration takes place, replacement land must be provided, but where that is may be critical to, for example, public enjoyment or to the setting of some house or some church or to the way in which a cherished view is seen. A piece of replacement land may turn out to be exactly as the law will set out and exactly the same size as that bit of common to be deregistered but lack other comparable qualities. Of course, deregistered parcels of land may be fitted up for building or redevelopment. We need to be most vigilant about the danger of development by the back door.

Secondly, I am most concerned at the extension of state power by the provisions that give the Secretary of State and our parastatal nature conservation bodies the right to intervene to stop agricultural activities that may have been going on for decades or centuries. For example, will they suddenly be able to judge with their new powers that this or that agricultural practice is undesirable because of some passing fashion? That seems to be the thin end of a potentially very big wedge. We need rather more examples from the Minister of the widespread damaging agricultural practices for which this legislative sledgehammer is being brought into being.

Will the state and its quangos be allowed to change agricultural practice on unfettered whim, and who will control those bodies? If the commoners do not like what is happening, to whom will they be able, as local people, to appeal? Will they be able to do that only through expensive court processes, by seeking access to judicial review? Many commoners would find that very difficult, being "little people", as they would describe themselves, not corn barons or whatever.

Thirdly and lastly, we need far more detail and reassurance over the new bureaucracies that will be set up or that the Bill will enable. The local commons associations may be local and harmless, but the overarching, overriding commons advisory bodies could turn out with their unfettered powers to be rather more dirigiste over time. In the case of the former, what level of local support will be needed to set up a commons association? Will the process be really democratic? How will that support really be measured? Much more important, will the larger, more powerful commons advisory bodies not only have oversight and initiative but the capacity to be turned into a useful parish pump appeal court of last resort to which locals can go if as commoners they think that their community commons association has been overbearing?

Could what the Bill terms—in that deathless and fearsome phrase—"the appropriate national authority", whatever that is, in the end decide ab initio to initiate or superimpose commons associations at will and on registered town and village greens—in other words, will it make that imposition from above that the Minister said was not his intent? I do not sense that the Bill makes that superimposition of a formalised and unwanted extra local bureaucratic layer impossible.

I end on this note. What seems on the face of it in 2005 a modest tidying-up exercise, 40 years after the previous Act in 1965, could turn out another 40 years on, in 2045, if the powers are exercised to their fullest unfettered extent—we need to ensure that the powers are fettered—to be the year when the creeping nationalisation and bureaucratisation of our commons, which have been in existence for 1,000 years or more, began. I hope that the Minister can reassure me on those points as the Bill proceeds.

Photo of Lord Greaves Lord Greaves Spokesperson in the Lords, Environment, Food & Rural Affairs 5:12 pm, 20th July 2005

My Lords, many of us in the House today will welcome the Minister to the travails and excitement of his first Defra Bill. We look forward to working with him. This is not the time to go into a lot of detail, simply because we have not been allowed the time to do so—and, in any case, the Bill is going to a Grand Committee, all being well. This is the kind of Bill that is ideally suited to a Grand Committee. We have a lot of hard work before us in that regard.

I should just say to the noble Lord, Lord Patten, that some of us would try to claim William Cobbett as a liberal—but we can argue about that some other time.

Commons are remarkable for their wide variety, ranging from quite small bits of—

Photo of Lord Patten Lord Patten Conservative

My Lords, the House may wish to be aware that I used the word "conservative" with a small "c" rather than in upper case.

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

My Lords, I am grateful—and socialist with a small "s", no doubt.

We have village greens and urban commons, which we recognise as urban commons; and then we have urban commons—to which the noble Lord, Lord Clark, referred—in the Lake District, which are not urban commons at all but which by happy historical accident were opened up to access some 80 years ago. We have the small rural commons to which the noble Lord, Lord Walpole, referred; and, in my part of the world, apparently arbitrary chunks of very large areas of our uplands are commons—in the Pennines, the north Yorkshire moors and the Lake District.

We should recognise that what those areas all have in common—"in common", sorry about that—is that they are all historical leftovers. They are remains of a time when far more of the country consisted of common land. As the noble Lord, Lord Clark, said, a large number of enclosures resulted in commons becoming to a large extent isolated pieces of land comprising various sizes and various varieties. When we consider the legislation, we shall need to recognise the huge range of commons that exist.

However, they all have a resonance. They have almost a mystical resonance with people who have nothing to do with commons and not much directly to do with the countryside any more. It is like a folk memory of the England of centuries past—the world of open fields, pastures, common grazing land, people cutting turves for fuel, going for their firewood, and cutting rushes and reeds and so on. They are part of a much wider sense that the countryside belongs to all of us. That is probably best shown when people who perhaps do not visit the countryside very often nevertheless go out in the summer and the autumn to pick wild berries. I refer to the whinberries of the Pennines near us and to the wild raspberries in the country park just upstream from where we live. I have tremendous childhood memories of going "blegging" and of picking blackberries in the Vale of York, where we were fortunate to have country cousins whom we could visit.

Commons are a very specific, very technical phenomenon but they have a real resonance with people in the country. That is why it is so important that they are preserved and are not allowed to be taken over by completely private interests and done away with.

The Bill is a technical Bill that concerns the registration, management and protection of commons. As such, it involves all kinds of different people who have an interest in commons. Commoners themselves are very often, although not always, farmers. The future of upland livestock farming is controversial and topical. There is a great fear that under the single farm payment hill farmers will miss out. The average age of hill farmers in the Lake District is approaching retirement age. Many of their children are not going into the business, as it were. There is a real danger that livestock farming may collapse in many of our uplands. There is concern about the future of hill farming land. Those matters do not directly involve commons but commons are of concern to farmers who are in that situation.

There is also the whole question of landscape conservation. The National Trust says that it owns 10 per cent of the commons of this country. Many of them are situated in some of the most important and spectacular places. I refer to recreation and access interests. The noble Lord, Lord Clark, mentioned the Open Spaces Society. I refer to the interaction between this legislation and the CROW Act, which many of us have fond memories of discussing five years ago in this House, including during the all-night sitting that finally got it through this House. We do not undertake such sittings nowadays. Conservation interests are involved and the matter has great implications for local authorities. The Local Government Association is rightly concerned about the additional burdens that the legislation might place on local authorities.

The Bill will not solve most of those problems. However, our task in considering the Bill in Grand Committee and at other stages is to do what we can to scrutinise it and, where possible, to improve it in such a way as to ensure that it does not interfere with or harm the different interests which have to be reconciled, and which I believe can be reconciled. Ideally, we should try to improve the situation.

The Bill has had broad support from an astonishingly wide variety of bodies such as the NFU, the Open Spaces Society, the National Trust, the Local Government Association, the CLA, the RSPB and others. They all have proper concerns about the Bill's details in view of their different interests. The Bill has been introduced into this House. I believe that we have a huge responsibility to look at it very carefully, to discuss it among ourselves and to send it to the House of Commons in an improved state, and in a state whereby the House of Commons will not have a great deal of trouble in saying, "Yes, this is a good Bill".

Photo of Lord Chorley Lord Chorley Crossbench 5:19 pm, 20th July 2005

My Lords, I come to this Bill as rather a greenhorn, although I remember that when I was the chairman of the National Trust we usually labelled common land issues as "handle with care". That said, the Bill is important and essentially well-drafted. As the Minister said, it has had a very long gestation, going back to the Common Land Forum of the 1980s. I should like in passing to commend the pages in the Explanatory Notes on the historical and legislative background. I too believe that it is important to place the Bill as part of an evolutionary process going back to the Norman Conquest. In that context, I should like also to commend the work, over 150 years, of the Open Spaces Society and incidentally to note that it was one of the founding fathers of the National Trust.

I am sure that there will be general support for the main provisions of Part 1 on registration. Clause 9 on the prohibition of severance of rights of common will be warmly welcomed. It is one of the major clauses in the Bill, and I suspect that there may be some technical aspects of it that we will need to consider carefully. Clause 14, on the registration of greens, is also to be welcomed. Clause 15 on the other hand needs further thought. Is there, for example, a danger of "chipping away" of small commons under the 200 square metres proposal in Clause 15? I regret that there is not time to go into that further.

Part 2 is on management and the measures that will allow and encourage statutory commons associations to be formed at a local level so that commoners can regulate how their commons are used. I hope that there will be broad agreement on the generality of this part. It seems to me that in the main what is proposed is straightforward and sensible. For example, Clause 30, on functions, is an important clause that seems essentially sound. I particularly welcome the public interest requirement and the link across from there to the nature and landscape conservation points in the clause. At subsection (7), one might also have expected the inclusion of "heritage" to be bracketed in with "nature" and "landscape"; the more so given that, as the Open Spaces Society points out, it is picked up in a similar context at Clause 37 on consent. Please, I too would like to know what on earth we mean by "sustainable agriculture".

This is not a point for legislation, but can we be assured that the licensing authority will not be too bureaucratically heavy-handed over the constitutions of the smaller commons associations? If we are going to achieve our objectives of better management, a relatively light touch would seem sensible.

I shall now address protection. I have the impression that there is widespread recognition that the procedures for consenting to works on common land need a thorough overhaul and that in general the proposals are supported. Nevertheless, there are a number of issues of detail that we will need to examine in Committee. I will confine myself today, due to the time limit, to one point—the powers of local authorities over unclaimed land and arising therefrom the "intervention" section. There are two points. First, should the actions of an LA be merely permissive, or should it have a duty to protect? Secondly, should the definition of an LA be widened to include a national park authority or an AONB consultation board? One notes that in Clause 44 relating to unauthorised agricultural activities the relevant authority does include an NPA. Why should Clauses 43 and 44 be different in that regard?

I am conscious of having to skim over a whole series of interesting points. A general point has been mentioned by almost all speakers—the numerous places in the Bill where, quite properly, a particular purpose will be affected by regulation. It would be helpful to know in general terms—and I am not suggesting that it should be in the Bill—what the powers will be, who will be consulted, and how the processes will be carried out. That is important.

Finally, we must get the Bill right because it is likely to be many years before we can tackle the subject again. The last time that we legislated in this field was 45 years ago.

Photo of Lord Haworth Lord Haworth Labour 5:25 pm, 20th July 2005

My Lords, I welcome the Bill. Common land is an important part of our natural heritage. It is of value to agriculture, of course, but also to recreation, landscape and nature conservation. Over the years, it has become increasingly evident that the legislation that covers common land is becoming out of date and the land itself is in many cases at risk from overgrazing and other depredations. The Bill will protect our common land for generations yet unborn, enabling commons to be managed sustainably and providing additional protection against misuse, encroachment and unauthorised development.

The accessibility of common land is greatly valued by the public, as it is largely unfenced. Indeed, there are common misconceptions about the ownership of common land. Many people believe erroneously that such land belongs to the people in some mysterious sense. Although that is not the case, most commons being privately owned, the utility value of common land cannot be denied. By the end of this year, however, public access to common land will have a proper legal basis, as the provisions of the Countryside and Rights of Way Act 2000 finally come into force. That Act has been one of the great achievements of this Labour Government and those who value increased access to the countryside should not readily forget the passage of the "right to roam" legislation.

I am aware of the lengthy historical background of common land and common rights, stretching back to 1066—and all that. However, the Metropolitan Commons Act of 1866 and the Commons Act of 1876 were the first general legislative measures largely intended to protect and manage common land.

The present legislative framework—the Commons Registration Act 1965—is the legislation that now needs to be brought up to date. The Bill will modernise and simplify outdated legislation so that commons can be managed sustainably by commoners and landowners working together. Locally, it will give common rights holders the power to regulate their own activities through statutory commons associations, which will be able to adopt binding rules by majority voting. It will provide commons with additional protection against overgrazing, abuse, encroachment and unauthorised development. It will provide for new powers of last resort for intervention to put a stop to practices which make commons ungovernable, such as leasing or selling-on rights of common to farmers remote from the community. It will help protect valuable wildlife habitats and improve public access by making much-needed improvements to existing commons registers, to allow the registration of common land that is currently unregistered, as well as the de-registration of wrongly registered land.

The Bill is based on the DETR consultation paper of February 2000 and it is worth noting that detailed consultations have continued since then with the various stakeholders, with a view to developing a consensus on the detailed proposals for agricultural use and management. In the various briefings, which other noble Lords will have received, as I have, the widespread support for this legislation in general terms is apparent. I have particularly noticed the general support of the Countryside Alliance, English Nature, the Royal Society for the Protection of Birds and the Open Spaces Society. The noble Lord, Lord Greaves, mentioned some others.

Of course, there is not unanimity on every single detail, but the details are matters for the Committee. Some of the details have been described to me by the Minister's predecessor, my noble friend Lord Whitty, as "fiendishly complicated". I should perhaps flag up one issue where there is concern that I feel is legitimate and which I shall want to press at a later stage. As the noble Lord, Lord Chorley mentioned, as the Bill stands no duty is placed on a local authority to take action to remove illegal works or take other steps to protect the land. The powers envisaged are discretionary and will be too weak to be effective. Such a power has existed under the Commons Registration Act 1965, yet experience appears to show that it is extremely difficult to persuade councils to take action. I hope that the Minister will be open to persuasion and that we can change his mind on that point.

The concept of sustainable agricultural management has been developed by the Department for Environment, Food and Rural Affairs, particularly via the mechanism of agri-environment schemes. The Bill will facilitate the entry by commoners to such schemes, through the statutory commons associations envisaged. That will protect and enhance or restore biodiversity and particular features of the landscape, in return for annual payments which will offset the additional costs of changed farming and land management practices. In addition, the Bill will be an important vehicle to help to secure the Government's target of bringing more than 95 per cent of SSSIs up to a favourable ecological condition by 2010.

The Bill is a modest measure which has yet to attract the attention of the great mass of the public. But I hope that it will secure a diverse and sustainable future for this most valuable and much loved natural resource. I am very pleased to have had this opportunity to express my warm support for the measure, and look forward to pursuing the particular point to which I alluded, and no doubt others, at a later stage, in the autumn.

Photo of Viscount Ullswater Viscount Ullswater Conservative 5:31 pm, 20th July 2005

My Lords, I thank the Minister for his clear introduction to the Bill, and for the helpful briefing session that he held for noble Lords last week. The Bill comes at an important time for the countryside, for agriculture, and for access to land granted by the Countryside and Rights of Way Act 2000. Therefore, it is to be welcomed. I must declare an interest in the matter. For many years I have acted as a trustee to a landed estate in Cumbria that owns many thousands of acres of commons.

As the Minister said, the Commons Registration Act 1965 dealt with only one part of the royal commission's report of 1958, leaving unfinished business to be carried through further legislation. Now is a good time not only to tidy up the 1965 Act and deal with some of its deficiencies, but to complete the work of the royal commission.

Two major changes in the way in which we support agriculture and manage the countryside have happened in the past five years. First, the change in the support of agriculture has moved from product support to a single farm payment and the introduction of agri-environment schemes. Secondly, access to the countryside has been moved up the political agenda so that access to common land granted by the CROW Act will be fully implemented by the end of 2005, as the noble Lord, Lord Haworth, mentioned.

Since 1965, when initial registration took place, management of commons has been extremely difficult due to the overregistration of rights—the Minister admitted that—and the CAP grant system based on headage payments. That effectively forced farmers to increase grazing to the maximum, or in many cases to exceed their registered rights. That in turn led to massive overgrazing, particularly on commons in the north of England, with the result that much of the habitat was destroyed, particularly the heather moorland. It is no wonder that the sites of special scientific interest have been damaged by that form of government subsidy, and that English Nature has said that 43 per cent of commons classified as SSSIs are in poor or declining condition.

The introduction of environmentally sensitive areas and countryside stewardship schemes has reversed that trend to a large extent. I shall give one example. On Crosby Ravensworth Common, where a countryside stewardship scheme has been implemented, the recovery of moorland habitat has been astounding.

Part 2 promotes the efficient management of commons by the establishment of self-regulating statutory commons associations which can undertake the sustainable agricultural management of common land at the local level. The 1965 Act dealt only with the registration of commons, and that register is now sadly out of date and a hindrance to effective management of commons. The farmers listed have long gone or died, and farms have been sold. We will need to examine carefully the scope and power of the associations to make sure that all those with rights and responsibilities for commons have a proper part to play in their future.

What level of "substantial support" will be required before commons associations can be established? Will the rights of the landowner be sufficiently protected? Sporting and mineral rights are valuable and need to be taken into consideration. Access to the countryside granted by the CROW Act, and particularly access to commons, will need to be monitored very carefully if the nature conservation aspects of the commons are to be safeguarded and improved. Ground-nesting birds are particularly at risk from the walking of dogs, for instance. Some of those birds are rare, and it must be made easy and effective for a landowner to close access at times when it is detrimental to the nature conservation interest of the common.

Part 3 introduces a regime for obtaining consent for the undertaking of certain works on registered common land, such as building walls, erecting fences, digging ditches and building embankments. It is important to ensure that the prohibition of such works does not hinder the carrying out of essential land management practices. We must look carefully at the power of the national authorities to step in and stop unauthorised agricultural activity which is detrimental to the protection and promotion of sustainable agriculture.

As my noble friend Lady Byford asked, what is sustainable agriculture in that context? Why not sustainable conservation? A reasonable balance should be established. Many areas of common land are of a high landscape quality. Why should that be spoiled? It would be deemed most unfair if one or other Secretary of State could step in and grant permission for a wind farm with multiple wind turbines on common land where the national authority could also prevent the common rights holders from erecting a new fence or digging a ditch. That is an example of the dangers that my noble friend Lord Patten had in mind.

I have stated that I welcome the Bill as the Commons Registration Act 1965 failed to deliver on public access and improved management, the missing pieces from the 1958 royal commission report. I look forward to the detailed deliberations that will take place in Grand Committee in the autumn.

Photo of Lord Tyler Lord Tyler Liberal Democrat 5:37 pm, 20th July 2005

My Lords, I have a long-standing interest in what I regard as these long-delayed reforms. I served as a vice-chairman of a national park committee for Dartmoor in my twenties, and then advised the Countryside Commission and the national parks collectively on the issues some years ago. I note from the Explanatory Notes and from what the Minister told us that the Bill is considerably dependent on the consensus achieved by the Countryside Commission in its work on the Common Land Forum in 1986.

In another place, I sought to secure the Bodmin Moor Commons Bill. I very much refer the Minister to the experience that we had there and in your Lordships' House—the Bill started in this House—because many of the issues that we are debating arose during its passage. Sadly, that Bill was sabotaged in the end by Members of another place who sought the opportunity to ride a stalking horse for general access legislation, and as a result the Bill fell. As a direct result of that, the Bodmin Moor commons have suffered from overgrazing to this day. Environmental management has been undermined and incentives for responsible commoners have been denied. The chance to benefit from ESAs, to which other noble Lords have referred, was by that simple act removed.

My personal interest is that I live and have lived for the past 30 years under the shadow of Bodmin Moor. With the Bill, I am particularly concerned to secure for future generations the experience that my family and I have had of the harmony of well managed uplands in the care of those who wish to practise truly sustainable agriculture.

I am conscious of the sense of history that has already been referred to by several noble Lords. Those, like myself, who regret the delay in bringing forward the proposals will, I hope, still recognise that it has taken a long time for the legislation to be passed in this country.

I note that Clause 45 repeals the Commons Act of 1285, from the reign of Edward I. We are not rushing this. It reminds me of the Cornish expression, "dreckly", which, simply translated, is something like the same as the Spanish word manana, without the sense of urgency.

At this stage, I am primarily concerned with Part 2 of the Bill, which deals with reform of management arrangements. I have already referred to our problems encountered on Bodmin Moor, by commoners and environmentalists alike, with irresponsible overgrazing by a small minority. Indeed, noble Lords have already referred to the problems that mass invasion by New Age travellers can cause. That took place on Bodmin Moor, too.

A different Private Bill set up a very successful management scheme on Dartmoor, but its passage was assisted by the existence of the national park designation there, with all the financial and legislative advantages that conferred. On Dartmoor, a Private Bill established a successful management scheme—but that is a national park, and huge financial and legislative advantages have been given to all concerned.

The Bodmin Moor Commons Bill, to which I have referred, started life in your Lordships' House in 1994, was exhaustively examined here, along with many of the issues that we are considering today, and received its Third Reading only on 15 February 1996. During that time, both Houses had an opportunity to rehearse the issues with which your Lordships' House is concerned this afternoon. During a debate in another place on 21 May 1996, the then Labour spokesman, Elliot Morley, not only supported our Bill, but committed his party to early implementation of the recommendations of the Common Land Forum. Nine years later is better than never. The present Bill fully reflects and echoes the same need for effective local management.

However, I am far from clear as to how the Government propose to walk the tightrope between unnecessary and over-powering central control on the one hand, by setting up the associations, and effective but sufficiently flexible local self-discipline on the other. A small minority of irresponsible commoners cannot be allowed to destroy the consensus between the majority and environmentalists on the best way to avoid immutable overgrazing. I recognise that the Minister, who referred to majority voting, is alive to this problem.

Sustainable agricultural husbandry is always a desperately difficult balancing act. That is especially the case where conflicting interests in difficult economic conditions—which, surely, is the case among upland livestock farmers—can be so potentially disruptive on the uplands. The landscape and ecological sensitivity of those areas are known to all noble Lords and have been referred to.

It is vital that the Bill can develop robust new management structures, building on the existing associations and taking full advantage of their local knowledge, but giving them the strength to insist on effective self-discipline in the areas for which they are responsible. I have referred to the number of commons on Bodmin Moor and, of course, in the Private Bill, we sought to bring them together in a single commoners' council. I hope that the Minister in his response will indicate whether that is the sort of pattern that he would wish to see in other parts of the country.

I very much welcome the Bill. It has been long delayed and we look forward to its implementation.

Photo of Lord Cameron of Dillington Lord Cameron of Dillington Crossbench 5:43 pm, 20th July 2005

My Lords, I, too, welcome the Bill, which is long overdue. It is, unfortunately, ironic, as has been said, that the real pressure for its need—over-grazing for the past 13 years—is about to disappear at the same time that the Bill is enacted. I predict that, with the introduction of the single farm payment, under-grazing will become a more serious problem. Nevertheless, the Bill is welcome.

I shall touch on one or two management issues. In Clause 7, subsection 4 obliges the registration authority to refuse an application for variation if, in its opinion, it would increase the burden on the land in question. I have two comments to make on that. First, with under-grazing becoming a problem, increasing the burden on the common may be what is needed in the future. So the wording should be "detrimentally increase the burden". Secondly, if that matter is cleared up, will the Government provide some guidance on how the authority will obtain access to proper agricultural advice to ensure that it takes a professional decision?

Moving on to Clause 9, I totally support the prohibition against severance. The connection between commoners and the common is an essential part of the culture and, indeed, is the raison d'être of our commons. I am thus not totally supportive of the proposed rights of the Countryside Council for Wales and Natural England to perpetrate severance and possibly ride roughshod over the commons associations. Always bearing it in mind that overgrazing could be a thing of the past, might it not be better for the Bill to allow the associations themselves to buy in—if that is the correct term—the rights or stipes and to hold them in abeyance for when under-grazing becomes a problem. Maybe, they could then distribute, sell or lease them in some way to other graziers who might resolve their under-grazing problem.

I warmly welcome Part Two, on management of the commons. This is the meat of the Bill. I welcome the flexibility that allows the commons associations to be established and to cope with the different circumstances in the many different types of commons that exist in our country. Having sound local management of those commons is crucial for their sustainability. However, I do not approve of Clause 33(3), which states:

"The appropriate national authority may revoke any rule made by a commons association".

If you give responsibility, you should stick to that. It is not a good idea to give it with one hand and to take it away with the other. The commons associations will know what is best for their part of England or Wales, without being told that by some national body. They will be able to take all aspects of management into account on a local basis.

The Minister spoke about empowering commons associations. It seems odd to put one's faith in the setting up of these associations and then, through that ultimatum, to indicate such a lack of confidence in the same Bill. In any case, there are sufficient clauses governing the management of commons inherent in the Bill to make such an ultimatum unnecessary.

Turning now to the clauses on protection, I recognise that there is a large element of public involvement and interest in all commons, especially after the CROW Act. I also recognise that some people abhor the existence of any man-made works on our commons. However, that viewpoint needs to be balanced against the desire of the average member of the public properly to enjoy the common. That inevitably requires proper management and, to a large extent in this context, will depend upon having a satisfactory grazing programme.

Therefore, it is important that the consenting regime for works on common land, as set out in Clauses 36 to 42, should work quickly and efficiently for the benefit of proper management and the proper enjoyment of access on the commons. I would have thought that the digging of ditches and trenches for drainage was different from the normal restricted works—particularly where there is short-term flooding, such works must benefit both visitors and stock.

I suggest that there should be an option of fast-track works where there is a natural assumption in favour of permission. That would include drainage works. Similarly, works carried out for the benefit of animal welfare might require some fast-track treatment.

The noble Lord, Lord Walpole, mentioned Travellers, whose presence might require urgent action. In that respect, the building of tank traps on the edge of village greens and commons might be relevant. Tank traps are small ditches with low wooden fences that keep off other problems too, such as motorbikes, joy riders, fly-tippers and other illegal intruders, but do not prevent access by foot.

Without some form of fast-tracking and looking at the consent procedures in Clause 38, I am afraid that it will take a long time for any improvement works, even if urgently needed, to be carried out on any of our commons. I ask the Government to come up with a satisfactory solution.

My final point is that the combination of Clause 39 and the CROW Act means that anyone in the world can now object through the county courts to management works on the commons. I do not believe that the county courts have loads of spare time on their hands. Thus, it would seem to be more sensible to limit such objections to the locality where the objector is more likely to be a regular user of the common and thus have due cause. I accept that there are probably legal difficulties, notably of definition, with that approach.

In conclusion, having made my few points, I congratulate the Minister and Defra on the Bill, which is long overdue. I am sure that it will be beneficial to commoners, to the commons and to all who use them, including flora and fauna, particularly of the two-legged variety.

Photo of The Earl of Caithness The Earl of Caithness Conservative 5:50 pm, 20th July 2005

My Lords, having been a critic of Defra in the past, it is a surprise and pleasure to thank it for its openness in the consultation period and its willingness to consider proposals put forward. It is also a pleasure, but no surprise, to thank the noble Lord, Lord Bach, for hosting the meeting last week.

As we heard, the 1965 Act was flawed. Another Act was promised "very soon" to rectify the problems, but 40 years is not very soon. Many rights that were wrong were registered, and some rights were not registered at all. But there is no ability now to correct that. Can the Minister say why not? Farmers in places such as Dartmoor have been severely prejudiced by the 1965 Act. They were promised by the government at the time that it would all soon be okay because another Bill would come through. They are now not going to have a chance to rectify the situation. I agree with what my noble friend Lady Byford said when she pointed out some of the difficulties of the Bill. It is without doubt a bonus to lawyers. They will have a field day.

My remarks from now on will mainly concern non-urban and larger commons. Unlike the noble Lord, Lord Cameron, I do not like Part 2 and I would advise any owner to steer well clear of it and stick to voluntary agreements. Like my noble friend Lord Patten, I am intensely suspicious of statutory schemes involving a Secretary of State.

The briefing that I have received indicates that many bodies are already thinking of the commons more in terms of landlord and tenant—I am more used to landlord and crofters—than in terms of owner and common right holders. I find that profoundly disturbing because governments of both persuasions—the government of which I was a member was no different—have increasingly given rights to tenants at the expense of owners. I can foresee exactly the same situation occurring here under a statutory commons association. Therefore, there is no question in my mind that owners' interests will be prejudiced by the Bill.

As Part 2 is to work from the bottom up, as the Minister said, can he confirm that an owner will have the power to veto the formation of an association? In contrast to the noble Lord, Lord Chorley, I do not like Clause 30 at all. In particular, I dislike Clause 30(3)(g). Who will have the final say when it comes to managing heather, gorse, grass and other vegetation? Will it make any difference if there is an existing agreement between the owner and English Nature or the Countryside Council for Wales?

Clause 31(3) refers to the surplus of commons. At present, that right belongs to the owner, but that is going to be transferred to the association with no compensation to the owner. What will the position be? At the end of the day, will the owner still have the right that exists now, or will it be the association?

Now I come to the killer point about Part 2, and pick up on a point made by the noble Lord, Lord Cameron. Clause 30(6)(a) states that the association must have regard to the Secretary of State's guidance. But Clause 33(3) allows the Secretary of State to make directions. Now if one looks at Clause 31(2), one will see that an association has the power to raise money as well as to acquire and dispose of land. We have good ingredients for trouble here.

Turning to farming and good husbandry, I agree with the noble Lord, Lord Cameron, that under-grazing is as bad as overgrazing. Like him, I believe that it will be just as serious a problem as overgrazing is now. Overgrazing was exacerbated by the wrong registration of interests in the 1960s and by inappropriate subsidies. However, the new farm payments schemes will help to solve the problem and it is likely to rectify itself in the short to medium-term. But it is right to stress that on some common land, it is very important that the common is heavily grazed in order to maintain the diversity of plants.

We shall undoubtedly have to look at Part 3, Protection. Clause 36 is worrying. Does the Minister envisage a number of de minimus works that an owner can undertake without threat of a lawsuit and ending up in the county court?

I have two final points. I hate "sustainable agriculture". Nobody knows what it means. It has a wide definition. My noble friend Lord Ullswater suggested a definition. I cast my mind back to my Cirencester days and suggest an alternative to the Minister. How about "good husbandry and land management" as an alternative? It is well documented in law and land agents knew what it meant. We did not need to go to lawyers to have it interpreted.

Finally, what about archaeology on the common? There is no mention of archaeology in the Bill. Surely, there ought to be a responsibility for it to be preserved.

Photo of Lord Rotherwick Lord Rotherwick Conservative 5:57 pm, 20th July 2005

My Lords, I congratulate the Government on bringing forward this long-overdue Bill. I hope that due time will be given to consider it properly, unlike the time given to the Natural Environment and Rural Communities Bill.

My first concern is that Clause 24(1) states that:

"Regulations may require or permit the whole or any part of a register kept under this Part to be kept in electronic form".

I stress, "may". At a time of great technical advancement, coupled with the transparency of the Government, it would surely be shameful if the word "may" is not changed to "shall" so that everyone can, with minimum expense and trouble, see a national terrier on his computer.

My other concerns are more complex. The Bill requires commons associations to be established. Although the national authority establishing these commons associations must have regard to representations from various persons, it would be sensible to explore whether an association could be controlled by a clique, whose interpretation of, say, "sustainable agriculture" would have an adverse effect on other members and their interpretations of "promotion of sustainable agriculture" and possibly on the interests of the wider public.

For the record, what is the definition of "sustainable agriculture" and how can we ensure that the wider public's interests are respected too? Will commons associations be able to restrict some of their members from certain types of traditional and acceptable farming practices?

Continuing with commons associations, I welcome the ancillary powers given to them and that they can enter into agreements. Cynically, one rather suspects that this is a polite way of saying that they shall enter into agreements with national authorities to conserve and enhance, and possibly enter experimental schemes, as described in the Wildlife and Countryside Act 1981. After all, Defra's public service agreement target aims to achieve getting 95 per cent of all sites of special scientific interest in favourable condition by 2010. That will require much conserving and enhancing, since we are told that 49 per cent of SSSIs on common land are not in favourable condition.

That would not be possible unless commons associations enter into agreements with national authorities. National authorities hold the purse strings of heavy purses. Therefore, one suspects that commons associations will eventually be compliant. What new funds have been budgeted for these purposes? Will they come from existing agri-environment schemes or from which other budgets?

In Clause 27, headed "Status", subsection (3) states:

"A commons association is not regarded as an authority to which section 28G of the Wildlife and Countryside Act 1981 applies".

However, by virtue of the commons association entering into agreements with national authorities, will they not be the agents of those authorities enforcing the Act as a whole? One must wonder if this awe-inspiring fact will dawn on them as they form themselves into associations.

I declare an interest as a person who is responsible for caretaking an SSSI, although it is not classified as a common. I have much experience of national authorities' demands. To help future associations and myself, will the Minister define the words "enhance" and "concern"; and what is the definition of a "sound experimental scheme"? It would be sad if commons with historical characters of complete disorder, as described in the commons book, were enhanced incorrectly. I believe that that was a concern of the noble Lord, Lord Patten. It certainly would be a concern of mine and other noble Lords.

Finally, what responsibilities will these common associations have regarding the safety and well being of the general public and wildlife? For instance, would they be responsible for the control of rabid foxes which could threaten the safety of the public and other animals?

I, and other noble Lords, look forward to expanding on and exploring the concerns and questions voiced today in future stages of this much welcomed Bill.

Photo of Lord Inglewood Lord Inglewood Conservative 6:03 pm, 20th July 2005

My Lords, like most other speakers in this afternoon's debate, I must begin by welcoming the Bill. I apologise to the Minister for having been unable to attend any of the briefings that have been held. I also make a declaration of interest. I am both an owner of common land and of stints on other lands and also the same in the capacity of trustee.

My remarks will come from the perspective of the north of England. I dare say that much of what I say will be equally true in Wales and in the south-west. As a number of speakers have already said, the problems of lowland commons are in some respects, and in some respects only, somewhat different. It seems to me that the crucial point about upland commons is that they still operate as part of a wider pastoral agricultural tradition, which we see not only elsewhere in the British Isles—the Minister commented on Scotland and Northern Ireland—but on the Continent too, for example, in the Pyrenees.

The crucial point here—and I disagree with what I think the noble Lord, Lord Greaves, said but which I am not sure that he meant—is that the common-land system is not in fact an archaic anachronism; rather it is a living form of land tenure, which in itself is part of a useful and productive agricultural system.

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

My Lords, I did not say that it was an anachronism; I said that it was a relic. It is not necessarily an anachronism.

Photo of Lord Inglewood Lord Inglewood Conservative

My Lords, I am extremely grateful for the noble Lord's semantic distinction that he drew to my attention.

The point is that in the uplands the system of common land is as relevant to contemporary agricultural practice as tillage of enclosed land is in, say, East Anglia. The misfortune that the commons have had goes back to the atrophy and then final death of the copyhold system, which was brought about in the end by the Law of Property Act 1925. The system of managing the commons depended upon the manorial courts and, once the copyhold system finally died, the general work of the manorial courts went with it.

The Minister has referred to the 1958 Royal Commission and the 1965 Act and so on but, as everyone has said, the problem is that things have proceeded far too slowly since then.

A number of previous speakers have talked about land. It is very important in thinking about the problems of commons to appreciate that both the common land itself—using the word in a layman's term—and the rights of common are real property. They are all, in law, types of land. The problem we have had since the collapse of the manorial courts is that there has been no proper system in place to enable these very curiously intertwined rights in land to be organised in such a way that they can meet the requirements both of contemporary agriculture in particular and the wider pressures that exist. I believe therefore that it would be desirable in time to see commons associations filling the gap that the manorial court system left.

It is important to remember in the context of the manorial courts that, first, the practice and rules that applied in them varied considerably from place to place according to the particular circumstances which pertained. But, equally, the system of law overseen by the manorial courts was, none the less, part of the law of the land.

It seems to me that that provides a valuable and useful template for the commons associations. It is one thing to say that you should have a commons association only if the commoners concerned and the landowner want it, but you must always remember that organisations of this kind are needed only when there is a problem. If you do not have an association in place before a problem arises, you will not be able to solve the difficulty in which you find yourself.

Therefore, I think that if you look at the matter over a longer period—and I take a slightly different view from a number of noble Lords; I may be considered a trifle idiosyncratic—there is a strong case for saying that we need to establish over time a proper system over all common land so that the various rights in land in it can be exercised appropriately as circumstances demand.

As I understand it—and it seems to me to be correct—what the Government are saying is that the commons associations are there essentially to organise these rights in land and to organise them in the interests of the agricultural activities of those carrying that on on the common itself. I think that that is right. If you look at, for example, the Lake District, to which the noble Lord, Lord Clark of Windermere, referred, there were a number of categories of land, some of them in the metropolitan district council area in South Lakes, which is the most rural metropolitan district that one could ever possibly find. Some land was held by the National Trust and other land was held privately. I was always brought up to believe that people could, as a matter of general practice, wander wherever they liked over the high fells. Even if the landowner did not want that, there was nothing he could do to stop it.

The reality is that there are systems in place in this country to deal with the environmental aspects of land management from a public perspective and, now, in regard to the problems of access. The commons association should be the interface with—if it was enclosed land—the landowner and the farmer to deal with the requirements that modern society has put on it. Equally, looking at the Bill, I can see no reason why the commons associations should necessarily be restricted to single commons. There may be an advantage in several commons grouping together.

Within that context I cannot overstate—and other noble Lords have mentioned this—the importance of membership of the association. You have to decide how you deal with stint-holders. How do you, for example, equate the right to have a sheep on the common with the right to have a cow on the common? How do you deal with other manorial rights which are affected? For example, on the Pennine commons there is little doubt that the most valuable asset, not only for the landowner but also in terms of spreading the income around the local community, is the shooting right. In many cases, grouse shooting is a very important complement to small hill farmers' incomes.

Finally, what is the position of the owner of the soil of the land, whether or not he is the lord of the manor? How do his interests relate to those of the stint-holders? Each of these parties has politically and legally a legitimate interest in what is going on.

I wish to deal with severance. The same principles also apply to apportionment of common rights. I agree with every noble Lord who said that it was undesirable that stints should be separated from the common. But it is probably slightly wrong to place a general embargo on transfer and severance, except to the relevant national authority. It would be much more desirable for severance to be allowed "within the parish". There is a precedent for that in the Greenham and Crookham Commons Act 2002. The wording of that Act would not be right for general legislation but it is an appropriate precedent. I intend to table an amendment to enable that to take place.

I have three main reasons. First, as noble Lords have said, there is a risk of danger from under-grazing. Many stints are attached to small parcels of land, which, as agriculture becomes increasingly hard, effectively cease to be farms. That means that the rights to graze go into desuetude. Much the best thing is for those rights to be transferred to adjoining or nearby farms. There should be a market in those rights, which could be confined to those in the immediate locality. There is no need to bring in a national authority because there would be no case of market failure.

Secondly, as mentioned earlier, is the question of hefting animals on commons. A lot of nonsense was talked about hefting animals during the foot and mouth crisis. For animals to heft on a common, they should be in reasonably sized groups, which makes it easier for the younger ones to learn what is necessary about the place on which they are grazing.

Finally, management generally will be easier the fewer large stint-holders there are, rather than the myriad of people with, say, one or two rights on a common. The same general principles apply to apportionment. Rather than having, as a matter of principle, apportionment of common rights over a piece of land pro rata, it should be organised in the best interests of husbandry in the area.

I have other detailed points but I do not want to go into them now. This is basically a good Bill, and I hope that while it passes through this House, we can improve it and make it even better.

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 6:12 pm, 20th July 2005

My Lords, I congratulate the Minister and his department on the amount of preparatory work done on the Bill. It has been in gestation for a long time. It was being actively discussed 10 years ago, and we kept on asking when it would be introduced.

The Bill includes many important points, but, as the Minister will be aware from the variety of speeches today, there are concerns. It is interesting to quote from the Inclosure Act 1845, which said that it was:

"An Act to facilitate the Inclosure and Improvement of Commons and Lands held in common, the Exchange of Lands, and the Division of intermixed Lands; to provide Remedies for defective or incomplete Executions, and for the Non-execution of the Powers of general and local Inclosure Acts; and to provide for the Revival of such Powers in certain Cases".

That was more than 150 years ago, but, interestingly, some of those points still apply today.

I happen to be the only Member of this House from Wales to have spoken on the Bill today. I have been working hard as a steward at the Royal Welsh Show, so it has been difficult to find the time to work on the Bill, but I have discussed it with a panoply of people at the show. I have some quotations on what people think about the legislation:

"It is a very familiar issue to me", and:

"There is no woman or man who lives more than about 10 miles from a common in Wales. It is a very, very familiar sight".

Many of us would have preferred to have a commons Bill for Wales. There is a tradition of free access to commons in Wales. The right to roam in harmony with commoners and landowners has existed for not only decades but centuries.

A third of Breconshire, where I come from, is common land. No county in England or Wales has a higher proportion of common land. Many small farms depend on sheep grazing for their economic viability.

Amazing things have happened to our common land in the past 70 years or so. When I was a primary school child during the Second World War, the War Agricultural Executive Committee ploughed an entire common upland at 1,000 feet. Italian prisoners of war grew potatoes throughout the common, in rows a mile long, followed by wheat. After the war, all the land went back to grass—it was S23 ryegrass, bred in Aberystwyth.

Common land is part of a working environment. The Bill, when enacted, will be warmly welcomed if it provides a secure balance between the rights of graziers and landowners and the need to respect the environment. In Committee it will be difficult to achieve the balance that probably we all seek.

One of the functions of the Bill is the protection and promotion of sustainable agriculture. Many noble Lords have asked what that statement means. There must be a balance between securing economic sustainability, so that people in the countryside do not become a rare breed in their own environment, and sustaining the natural environment through biodiversity. Frequently, events such as the foot and mouth outbreak have had an impact on the countryside. We on the Brecon Beacons had to slaughter 18,000 ewes during the outbreak, with the result that the stocking rate has decreased considerably. Farmers have told me, and I saw at the Royal Welsh Show, that there is far more grazing on the Brecon Beacons now than there was before the outbreak of foot and mouth disease.

The noble Viscount, Lord Ullswater, rightly referred to common agricultural policy reforms and how headage payments have encouraged farmers to keep far too many sheep. The situation is now substantially different because of CAP reform. I agree with noble Lords who said that overgrazing will rapidly become under-grazing, which will create a management problem that must be addressed.

Over the past couple of days I have been discussing the registration of rights and the rights of commons associations. It is a difficult issue, given the wide range of common land throughout the United Kingdom. After leaving Wales, I was fortunate enough to work in the Pennines, where the situation was quite foreign to me. I was unfamiliar with the farm maps of the uplands, talk of stints and such matters. Coming from Wales, I was not at all familiar with the system in the north of England. That has been brought out in today's debate.

The Farmers' Union of Wales is exercised about certain issues, although I am pleased that Defra has made it a stakeholder in its discussions, which has enabled it to resolve a lot of points. The union was particularly concerned about the role of county councils and unitary authorities in the registration process. That has been ironed out, and, we are glad to say, all the union's arguments have been accepted. But there are concerns about a situation that arises leading to the fresh registration of rights in common.

The union says that the registration of grazing rights, provided that those claiming the rights can adduce appropriate evidence, should be a relatively straightforward matter which can be put right. Only those persons who are claiming as owners of the dominant holding, under the process which existed under the Commons Registration Act 1965, will be eligible to apply. There might problems of misallocation and, in some cases, no rights, but they may be able to be re-established. The union is concerned about that.

The situation of commoners is very important. It is difficult to achieve equality between the rights of commoners and the rights of owners. However, I believe that the majority voting system in the case of commoners will sort out a number of previous problems. Certainly, I know of instances where commoners on one hill have had severe disagreements among themselves about how something could be resolved and have never managed to achieve it.

The flaws in the 1965 Act, which came out of the 1958 royal commission, frankly, should not have occurred. The 1958 royal commission is well worth reading. If noble Lords can get hold of a copy, I would advise it for summer reading. It is brilliantly written by people such as Dudley Stamp, who is probably our most prominent geographer of the past century. Sir Ivor Jennings wrote other parts of it. It is an easy and most interesting read. We would all become very well informed from the information gathered at that time.

We are pleased that county councils and unitary authorities will continue to keep and administer registers. That must be right: it came out in 1965. We are also pleased that severance, as many others have said, has been addressed and, to a certain extent, resolved. That is very important. It is crucial that dominant land is attached to common grazing rights.

We as a party will work hard to ensure that all aspects are addressed conscientiously in this Bill, that people's human rights, in relation to common land, are properly protected, and that the balance between those human rights and the ability to make a living in the countryside are balanced with the important aspects of the environment and wildlife.

I believe that that can be achieved with good will and common sense. There is plenty of it in this House. The speeches today give us hope that a good result can be achieved with a lot of hard work in Committee.

Photo of The Duke of Montrose The Duke of Montrose Spokespersons In the Lords, Environment, Food & Rural Affairs, Deputy Chief Whip, Whips, Spokespersons In the Lords, (Also Shadow Minister for Women & Equality- Not In the Shadow Cabinet) 6:23 pm, 20th July 2005

My Lords, perhaps I can consider myself fortunate that coming from Scotland, as the Minister pointed out, I do not have any direct interest to declare in the immediate subject of the Bill. That is particularly so when I saw how my life or tried to find out how my life would be shaped in a rather opaque way by clauses such as Clause 28(6), which goes on about regulations being amended by regulations in terms amended in relation to the terms as first prescribed. However, I declare an interest as a landowner and a hill farmer.

We have heard today from a wide perspective, in the true traditions of the House, including owners of commons; those who have lived in a dominant tenement; those who, I take it, own a servient tenement; those who have enjoyed access, such as the noble Lords, Lord Clark and Lord Haworth; and those who have enjoyed the history, such as the noble Lord, Lord Greaves, and others. Their contributions, founded on experience of the common land system, bring a wealth of knowledge and understanding to our debate.

The Minister kindly offered us briefings on the way in which he and his department were approaching the Bill. On occasion, I have wondered whether we spoke the same language, especially regarding sustainable agriculture. Many noble Lords, including the noble Lord, Lord Chorley, and my noble friend Lord Rotherwick have mentioned that difficulty. In fact, we have seen the term used in a different sense by various noble Lords.

Sure enough, the phrase "sustainable agriculture" occurs in Clause 30(2), but when I go further into the clause and its stipulations on the functions of commons associations, what do I find? There are sections on the removal of livestock; on having regard to guidance given by the appropriate national authority; on nature conservation and conservation of landscape; and on the protection of public rights of access. They are not directly related to sustaining agriculture. There is no sense that an important yardstick might be seen in agricultural production or in the viability of farming units.

I understand rather better the instructions given to the 2002 stakeholder working group, which was told to seek a consensus on proposals for,

"agricultural use and management of commons", with no mention of sustainability. I almost feel that I should ask whether it is the purpose in Defra to fix the meaning of the trendy new term "sustainable agriculture", which is supposed to encompass all the criteria in the Bill and few of those to which the men who have been trying to make a living from the land have been accustomed.

That approach seems to me, as it did to my noble friend Lord Ullswater, to have more to do with a sustainable, ecological prescription than it has to do with agriculture. Perhaps the Minister will tell us whether he feels "sustainable agriculture", the latest technical term for use in industry, is on a par with "modulation" and "degressivity".

As my noble friend Lady Byford has said, there are many aspects of the Bill that we will have to consider carefully. A worry arises in Clause 14 about the criteria for the registration of greens. The noble Lord, Lord Clark, mentioned the urban commons in Cumbria, but it seems to me that there is no need for a town or village green to be adjacent to housing or in a built-up area. That may be as it should be, because perhaps the local cricket pitch is on land that has been lent to the club at some distance from the village and everyone thinks that it should be managed as a village green.

My noble friend Lady Byford drew the attention of the House to the fact that the right to apply for registration of a green depends on grounds of indulging,

"as of right in lawful sports and pastimes", for 20 years, when it can be a question only of walking the dog. My concern is that that is a recipe for ensuring that landowners will consider barricading everything that is not currently open to access and will try never to let anyone go on it without permission again. Even the Royal Institute of Chartered Surveyors in its brief seems to suggest that that would have to be overcome, perhaps by incorporating some definition. In Committee, I would like to ask the Government whether they would consider, particularly, an exception for a form of legal access agreement where the owner does not want a permanent right to be established immediately. That would give a chance for review. That would probably ensure that there would be less resistance to a fully comprehensive network of footpaths being created in the first instance. My noble friend Lady Byford also mentioned the worry about spurious claims for village greens purely as a gambit to prevent development.

In common with my noble friend Lord Inglewood, I find another knotty problem in Clause 9, entitled, "Severance". I have no doubt that some commons have experienced problems with absentee holders of rights who remain unconnected with the policies and wishes of those who are actively involved. My hope would be that, with our efforts to set up commons associations and the conditions that we attach, it would go a long way towards ensuring that everyone who has rights will have to be connected. If they are not, they will be unable to influence what is going on.

The noble Lord, Lord Greaves, mentioned an issue about which noble Lords must be aware. On 6 July, the National Trust produced a worrying study of 60 tenanted farms on their properties which showed that, under the single farm payment system, all those in the hill and upland areas would become economically unviable, let alone unsustainable. The question that that raises in my mind—it was touched on by my noble kinsman Lord Cameron—is "What happens to grazing rights when the dominant tenement is a farm that has been abandoned?". If agricultural sustainability is incorporated in the aim, surely severance should be retained, designed and directed towards those who are recognised as potentially active users of the right.

Even more worrying is the factor mentioned by my noble friend Lord Patten. If, at the end of our debate, we are left with purely Clause 9(3)—where the right of severance may be transferred only to Natural England or the Countryside Council for Wales—can the Minister explain whether that implies that within the Government's intentions is the possibility that in a process of attrition, more and more of those areas will become a fiefdom of Natural England and we will see a form of common land nationalisation?

My last words are on the commons associations themselves. The Bill fails to go into any detail on their constitution or their basic administration and working. That creates a wealth of questions. For example, will there have to be a minimum number of people involved in order to form an association, or technically could one person alone constitute the body? How will decisions be made? The Minister said in his opening speech that decisions should be made by a majority vote. If so, how will that majority be defined? Who will chair the meetings, and will the post be one that rotates among the members? How will the process of setting up an association be triggered? Does the Bill allow Her Majesty's Government to set up an association without receiving an approach by commoners or owners themselves?

I could go on, but in the spirit of a Second Reading debate, I believe that I have asked too many questions already. However, your Lordships will have a feel for the amount of the unknown in the Bill. It is one more example of where the devil is in the detail, and I feel that the argument for flexibility does not justify leaving so much to regulation. Let us hope that many answers will be set out in the model agreement mentioned by the Minister. In particular, let us hope that we have sight of it before we reach any further stages.

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) 6:33 pm, 20th July 2005

My Lords, I thank all noble Lords who have taken part in what has been a very constructive debate on a particularly complex and challenging subject. Members in all parts of the House have welcomed the Bill, and it seems to have attracted widespread support from most parts of the country. That is important, as there are vast amounts of common land in England and Wales. As my noble friend Lord Williams of Elvel—another Welshman who would have liked to be here today to accompany the noble Lord, Lord Livsey, but was unable—has pointed out to me in correspondence, although 3 per cent of England is common land, a massive 8.5 per cent of land in Wales is common land.

Of course, I recognise from our debate today and from the briefing sessions held last week that there are areas of the Bill that we could perhaps improve further. It is our intention to continue to work with stakeholders and parliamentary counsel over the Recess so that, if necessary, we can table amendments in time for Grand Committee in late October. I thank the noble Lords, Lord Chorley and Lord Livsey, for their praise of the Explanatory Notes. Such notes are not always praised. I also thank the noble Lord, Lord Livsey, for his words on how the officials had responded.

I shall attempt to address some of the specific points made during the debate. There is not a chance that I will deal with them all, but I shall do my best. I shall start with the words "sustainable agriculture", which have exercised many noble Lords, starting of course with the noble Baroness, Lady Byford. However, noble Lords too numerous to mention made much the same point. I suspect that we shall return to the subject once the summer holidays are over.

Let me say this for today: we want commons associations to improve the management of agricultural activities on common land. That includes the social, economic and environmental aspects of agriculture for current and future generations. The noble Lord, Lord Tyler, spoke of the generations to come. We believe that such management will contribute to a wider range of public benefits on commons, and I remind noble Lords that commons associations will also be able to make rules to bind all those sharing the resource.

The phrase "sustainable agriculture" can be defined in many ways. A rigid definition set out in the Bill would restrict the ways in which individual associations could function on different commons. Activities that are appropriate for a large, privately owned upland common might not be suitable on one owned by the National Trust, which must balance agricultural use with providing for public enjoyment, or on a common designated as a SSSI, where nature conservation might be of paramount importance.

I turn next to the concern expressed by the noble Lord, Lord Patten, that this may be the start of some land grabbing by the state—not intentional, of course; the noble Lord was careful to say that—and that perhaps 40 years on that may be the result of the innocent-looking legislation being debated on Second Reading in your Lordships' House today. He is wrong. This is not a way to secure state control of land; it is a sensible attempt to make the complex law in this area more modern and more understandable in the years ahead.

The noble Lord put several questions to me. Can the relevant national authority impose commons associations on an area? As I pointed out in my opening remarks, commons associations will be formed from the bottom up, and there must be substantial support from the key interests in the common before the relevant national authority would establish the association. We know that trying to impose such organisations on commoners will just not work. The proposal needs their full support.

The noble Lord also asked what the Secretary of State and the relevant quangos—his word—would use the intervention powers for. They concern in particular the interests of landowners. The powers will apply only when unauthorised agricultural activities are carried out on common land and where they prevent the protection or promotion of sustainable agriculture. That protects the public interest where damage to a common is occurring through unauthorised activity. I emphasise that it is not a general power for the Secretary of State to intervene in the management of common land where authorised agricultural activities are taking place; that is, activities carried out by the owner or with the owner's authority. The noble Lord put a series of further questions to me, but I hope that he will forgive me if I do not deal with them all now.

The noble Viscount, Lord Ullswater, asked what level of "substantial support" was required for creating a commons association. I can repeat what I said earlier: substantial support will be required depending on local circumstances. It may be that I shall be pressed on that at a later stage. For a large group of commons with several landowners, commoners and other interests such as sporting rights, the term "substantial support" might imply that a majority of all interests must be in favour of establishing an association. On the other hand, on a single common with only one landowner and a large number of rights holders, the support of the majority of commoners might be enough to establish an association.

I was asked about sustainable agriculture, husbandry, and the balance that needed to be struck if we were to pass a satisfactory Act of Parliament. We believe that commons associations will make it easier to achieve the difficult balancing act between the economic, social and environmental aspects of sustainable agriculture, thus allowing the different interests in a common—the landowners, the rights holders and other interests—to work together. That is the aim.

The noble Baroness, Lady Byford, raised a number of issues. She asked what area a commons association would cover. The noble Lord, Lord Tyler was also interested in that question. A commons association can be formed for a single common or for a group of commons in an area. We expect that in most cases associations will be formed for groups of commons in a region or local area.

The noble Baroness asked how many commons were still disputed. Very few commons remain disputed—that is to say, their registrations remain provisional. Some are in south Wales, where a local Act requires the registers to be reconstituted, but we are not aware of a significant number elsewhere.

The noble Baroness also asked, quite fairly, what additional work and costs there would be for local authorities. There will be some additional costs, but people will need to pay fees for amendments to the registers and so many functions will be self-financing.

The noble Baroness and other noble Lords expressed their worries about over-regulation as a result of the Bill and commented on the publishing of draft regulations before the Committee stage. I was careful to say in my opening speech that I gave an undertaking to publish a draft specimen order establishing a commons association under Part 2. I do not propose to publish draft regulations under Part 1, as they will be more or less routine regulations covering such matters as the form of an application and the persons to be notified. We expect to consult on such regulations following Royal Assent.

Is this over-regulation? We believe that it is not. There is widespread support among interested parties for an effective registration scheme, and that can be achieved only if changes affecting the registers are notified.

The noble Baroness, Lady Miller, asked whether the objectives of commons associations were too narrow. No doubt, we shall consider the matter again. Our objective has always been to allow those with common rights to develop more effective and sustainable agriculture management practices on commons. Broadening their purpose would require the involvement of a wide range of other interests, which would make common rights holders less likely to form associations. If they do not form associations, it will be more difficult for them to achieve that sustainable agricultural use of commons.

I was asked by noble Lords what the Government were doing about unclaimed common land. The Bill re-enacts existing measures to enable local authorities to act to protect common land with no known owner. We are considering what further provisions could be brought forward in Committee to improve the management of unclaimed common land.

The noble Lord, Lord Walpole, asked about the impact that the Bill would have on Travellers. It will not alter the current legislation in place for landowners to obtain possession of their land where trespassers have set up unlawful settlements. Clause 43 also re-enacts provisions to enable local authorities to act to protect common land where there is no known owner.

My noble friend Lord Clark of Windermere asked about charitable bodies taking enforcement action against illegal works on commons. We will look at the issue further. As my noble friend said, at present Clause 39(3) allows only a local authority or a person with rights of access to take such enforcement action.

The noble Lord, Lord Chorley, and my noble friend Lord Haworth asked about local authorities having a duty to protect common land. We do not believe that it would be appropriate to impose such a duty on local authorities. They should be able to exercise their discretion and take into account all relevant factors in deciding whether to take enforcement action.

The noble Lord, Lord Chorley, also asked about the national parks authorities and why they could act under Clause 44 on unauthorised agricultural activities but not under Clause 43 on unclaimed land. I am advised that the national parks authorities can act under Clause 43 and Clause 44. The power for a national parks authority to act under Clause 43 is apparently contained—I certainly would not have known this without advice—in Schedule 9 to the Environment Act 1995. I hope that the noble Lord is impressed by that. I wish that I could claim the credit.

A number of noble Lords, particularly the noble Baroness, Lady Miller, and the noble Lords, Lord Cameron and Lord Livsey, asked about commons associations being able to deal with under-grazing as a result of common agricultural policy reforms. This is a real issue. We believe that the creation of commons associations will make it easier to enter common land into agri-environmental agreements. Those agreements will provide, we hope, financial support to achieve a wide range of environmental benefits.

The noble Lord, Lord Cameron, asked about severance and made a point about Natural England, as did a number of other noble Lords. It is intended that rights can continue to be acquired by nature conservation bodies in order to reduce grazing pressure on over-grazed commons. Commoners will decide whether they wish to sell those rights. As to why statutory commons associations are exempt, we are considering suggestions from some stakeholders that a statutory commons association should be empowered to sever rights and manage the rights itself, but I cannot offer a commitment at this stage.

The noble Viscount, Lord Ullswater, referred to the prohibition on works under Part 3 of the Bill and asked whether they should not hinder management works. He also asked about the Secretary of State's powers with regard to wind farms. The controls on works in the Bill essentially repeat the controls contained in the 1925 Act. It is not the intention that minor management works that do not prevent or impede access to the common should be covered by the consent regime. All applications to undertake works are considered on their individual merits. Clauses 36 and 37 ensure that all proposals will be carefully considered in accordance with the criteria set before any decision is reached. Planning permission will be required for major works such as a wind farm. Clauses 36 and 37 will introduce an extra control over works on common land.

The noble Earl, Lord Caithness, asked a number of pertinent questions. He asked whether commons associations would be formed if land owners or commoners opposed their creation. We do not believe that full support from all interests is necessary for the establishment of a commons association, but prior to establishing an association, the Secretary of State must consult local interests and can establish an association only where there is substantial support. An association is therefore unlikely to be established where there is significant opposition from key interests. If the vast majority of commoners on a common want to establish an association and the owner opposes it, our view is that the association may still be created.

The noble Earl asked why the Bill did not allow for the correction of mistakes and fraudulent excessive registrations of rights under the 1965 Act. We have listened to what interested parties have said about that and, as I said in my opening speech, we recognise that a number of rights registered in the 1960s were exaggerated or inflated. However, in common with most stakeholders, we believe that we have to move on from there and that re-opening the registrations all these years later will not be helpful in achieving better management.

I was asked how the rights of owners would be dealt with in any association. All the major interests in a common will be represented on the governing body of the association. An association can manage only agricultural activities on a common. That does not mean that it can always override the rights of landowners. Our intention is for the establishment order to determine the procedure for obtaining consent and specifically to identify where, for what activities and from whom consent is required.

The noble Lord, Lord Rotherwick, asked about the funding for new agri-environment schemes. Such projects on common land can be accommodated in the recently launched higher-level schemes. I dare say that we will hear more about that.

The noble Lord, Lord Inglewood, asked about severance being allowed in the parish. Clause 9(5) enables regulations to prescribe exceptions to the general prohibition. We will consult on whether exceptions such as the ones mentioned by the noble Lord might be allowed in particular areas, especially where such practices have been long accepted. I look forward to talking to the noble Lord about that issue.

That is the best that I can do in answering the questions. I shall finish by saying that everyone who has spoken recognises the importance of commons. Sometimes it is said that common land is an ancient institution, older than Parliament itself. It is certainly an important part of our national heritage. It is valued for many reasons, not least for agriculture, public access, landscape and nature conservation. The prospect of potwalloping with the noble Baroness, Lady Miller, is exciting, perhaps even more so than blegging with the noble Lord, Lord Greaves. I do not know whether, even after all these years, the noble Lord could be arrested for the theft of, I believe, raspberries, which he admitted.

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, forgive me—blackberries. We have also heard examples of commons at risk from over-grazing, under-grazing and from abuse and encroachment. I believe that everyone thinks that the Bill is essential, 40 years on. If we are to protect our commons for current and future generations, it is long overdue. We can conclude the agenda for reform, which was set all those years ago by the Royal Commission, so as to confer new management powers over commons and give them effective protection in the public interest.

Until recently, the debate about commons reform was stymied by concerns about the Royal Commission's recommendation on public access. However, the Countryside and Rights of Way Act 2000 has now dealt with matters of access, and we can get on with the remaining reforms addressed in the Bill.

I am grateful to noble Lords who have taken part. We shall meet again in late October probably and go into more detail on the Bill. I promise the noble Lord, Lord Tyler, that there will be no dreckling—if that is the right expression.

On Question, Bill read a second time, and committed to a Grand Committee.