This is a short, straightforward amendment. It says that, under the procedure for establishment in clause 27(5), the appropriate national authority for the purposes of the debate—the Minister—must have particular regard to representations from three groups of people. We should make it clear that, under subsection (5)(b), it should not only be those who are entitled to exercise rights of common over such land. We have already heard how many rights are not exercised, but what matters is that the role of those who do exercise the rights over the land rather than those who just own the rights should be particularly important. In other words, if they were to receive an application to establish an association and it transpired that virtually everyone who was pursuing it may hold rights and be entitled to exercise them, but have not done so since the year dot—or, at least since 1965—clearly that application would be considered baseless. The amendment does not require great changes to be made to the Bill, but it is important that we ensure that the voice of the active commoners—those who are exercising their rights, and who obviously have a much greater role in the management of the common, which is what the Bill is about—is strong.
Our amendment is the same as that tabled by the hon. Gentleman, although it is directed at a different place in the Bill. As he said, it emphasises the difference between active and inactive commoners. Many people with rights do not exercise them and it seems wrong that their views should be of equal weight to those who do exercise their rights. If the management of a common is to be altered as a result of the formation of the statutory body—the association—it is the people who are grazing the common who should enable that change to take place, either by reducing the number of stock on the common or increasing it. Inactive grazers are unlikely to be encouraged to put stock on the common as a result of the formation of a statutory body.
Absolutely. The hon. Gentleman has made a good point. The amendment would be useful because it would assure those commoners who contribute so much to the management of the common that their interests will be at the front of the national authority’s decision-making process. For those reasons, I hope that the Minister considers it appropriate to accept the amendment.
I support what has already been said. The important principle is that those who exercise their rights are often those who live and work close to the common. There might be many examples of dominant tenements being owned by people who do not occupy the premises and often have little to do with the common concerned. In constituencies such as mine, there are large numbers of second homes; properties lie empty for much of the year. In the past, many of those may have been agricultural holdings. It is particularly unfair that those who choose to take very little active part in the community or the management of the commons should have equal rights to representation or should be given equal standing when it comes to the formation of a commons association, committee, council or whatever it may be.
I am just looking at clause 39(1)(a).
We are resisting the amendments for a number of reasons to do with flexibility. It would be difficult to define what constitutes the active use of rights. Should commoners grazing two ewes for one day of each year be considered as exercising their rights, or should it be a greater proportion of rights for a more limited period each year? How long should it be before rights are considered inactive? The commoners may have entered an agri-environment agreement that necessitates rights not being used for a period—does that render them inactive?—or the common may not have restocked after suffering the impact of disease, such as foot-and-mouth. It would also be impossible to determine who falls within the definition of an active commoner, even if one could be determined.
The Bill does not prevent the national authority from according greater weight to the views of what it may define as active commoners, which will be important when there are a large number of clearly inactive commoners, compared with the number of apparently active commoners. However, in reality, on an agriculturally active common, it is likely that most interest, and therefore most representations, would come from those actively exercising their rights.
I am sure that I will do so when we get to clause 39. While I think about that, let me just offer one other scenario to hon. Members. On a common where there is no, or very little, agricultural activity, more weight might and should be attached to representations received from persons with nature conservation interests, or with statutory responsibilities for the common. We would not want to prevent such persons from being involved in, or having their voices heard in, the establishment of a commons association.
On that basis, I hope that the hon. Member for South-East Cambridgeshire will seek leave to withdraw his amendment.
I am disappointed with the Minister, because I do not think that he has listened to the argument at all. I am not sure whether he is coming to the end of his file tonight.
I made the case as eloquently as I could, and I appreciate that it may have its weaknesses, but the comment from the hon. Member for Meirionnydd Nant Conwy underlined the matter completely. The phraseology is identical. Under clause 39, it is to do with the consent for works:
“the national authority”— that is, the Minister—
“shall have regard to...the interests of persons having rights in relation to, or occupying, the land (and in particular persons exercising rights of common over it).”
He obviously believes that, in that context, it is possible.
I am grateful to the hon. Gentleman. Of course, clause 39 differentiates between landowners and commoners, which is a much more straightforward difference than the one between active and non-active commoners.
I fail to understand the logic of that intervention, because we are only talking about people having
“the rights of common over it”.
Some of them will be owners, but some will not be. We are talking about
“the interests of persons having rights in relation to, or occupying, the land (and in particular persons exercising rights of common over it).”
The issue here is that an owner cannot exercise right of common because that involves exercising a right on someone else’s land. The Minister is wrong on this issue because it is bound to revert to a situation of people exercising rights as commoners, not as landowners.
I am grateful to the hon. Gentleman; he adds to my argument. The Minister is accepting, under clause 39, that he, as the national authority, will be able to divine which persons exercise the rights of common over the land. However, half of his justification for rejecting the amendment is that he will not be able to do that in relation to whether to set up an association. Frankly, it is a daft position and not one I would have expected the Minister to adopt. I am tempted to suggest that he has not read his notes because he would have seen through the argument if he had read them beforehand. I am far from satisfied with his response and unless he wishes to intervene, I do not feel inclined to withdraw the amendment.
To help the Committee, I shall undertake to write hon. Members in order to clarify that the main reason why I am resisting the amendment is because we want to retain flexibility. If I have failed to win the argument on flexibility, I apologise to the Committee and the hon. Gentleman, but I shall write to clarify the very similar wording of the two clauses.
I am grateful to the Minister for that small concession, but the principle remains. We believe that this is an important point of principle, and a number of outside bodies share our belief.
I am disappointed that the Minister could not see his way to accepting the amendment because there are other aspects of the clause that give me cause for concern. Who can initiate a procedure for establishment? There are many thousands of commons throughout England and Wales and all essentially could apply to become the statutory body, the association or whatever we decide to call it in the end.I would think that the people best placed to initiate such a procedure would be the owner of the common, the people who exercise rights, or perhaps even inactive graziers or people involved in the management of nature conservation, access or some other element of the public good.
Organisations or individuals could initiate the procedure for establishment, which would cause a lot of work for a voluntary association, if that were in existence, or the national authority. The Department for Environment, Food and Rural Affairs or even the National Assembly of Wales could be swamped by applications—I will not call them malicious—that were not based on the best interests of the common. It causes me real concern, because if such an application were made and it resulted in a lot of work for individuals who were interested in the common, it might deter them from making genuine applications that could improve it.
People might not consult enough among commoners or voluntary associations to determine the most appropriate application, whether by an individual common or by a number coming together to form a statutory body of sufficient substance to justify the administration and costs. I attempted to table an amendment to that effect, but I could not fit it into the Bill. There is cause for concern, which the Minister could address on Report by coming forward with a limitation on the people who could initiate such a procedure.
Clause 27 sets out a procedure for establishing a commons association. An association will be brought into existence when the Secretary of State makes an establishment order, and orders will be tailored to the specific circumstances of the common or commons in question. The first step in the establishment process will be at the local level, and it is for local legal interests to decide whether they want to establish a statutory association. We shall not impose an association on a common.
I can reassure the hon. Gentleman that a commons association will not be foisted by interested outsiders upon those involved in managing the common. We realise that a local interest may need some help at the preliminary stage. In recent years, the Rural Development Service has been significantly involved in helping set up voluntary commons associations to assist commoners in their applications for agri-environment funding. As part of Natural England, the service will continue that work. Natural England will play a vital role in helping to facilitate the creation of those local associations where they make good sense, but not to impose them.
I believe that the Minister is genuine about that. He has before given us the assurance that DEFRA and—I certainly hope—the National Assembly for Wales will not be involved in enforcing the establishment of statutory associations. However, that is not my concern. My concern is that people who are not legally involved with the common might get it into their heads that statutory associations are a good thing and make applications on behalf of commons for which they have little interest.
Nothing in this Bill prevents somebody from initiating a procedure on behalf of a common where the great majority has no interest in forming an association. The time and effort that would have to go into consultation and representation would be entirely wasted, and they would use up a huge amount of energy that could be better expended in another direction.
Regardless of who makes the application for a commons association, the national authority will still be required to ensure that there is substantial support for it. In assessing the level of support, the national authority will publish the draft establishment order and representations on it, paying particular regard to the views of those with a legal interest in the common, regardless of who applies. Where significant objections are made, there will be scope for the national authority to, in turn, hold a local inquiry. Those safeguards will prevent external interests from overriding the views of those who would be most affected by any new commons association—the people whom the hon. Gentleman seeks to protect.
There are sufficient safeguards in the mechanisms that are being set up for the establishment of a statutory commons association. It is intended to be a bottom-up process. Part 2 will not impose those associations on the key local interests against their will.