‘( ) the proportion of members of the association who should be owners of rights.'.
Amendment No. 73, in clause 30, page 16, line 33, at end insert—
‘(e) the holding of meetings in public'.
Amendment No. 37, in clause 30, page 16, line 35, leave out paragraph (3)(a) and insert—
‘(a) the election of at least half the members of the association;
(aa) the local community from which members are to be drawn and the role of representatives of town and parish councils'.
Amendment No. 65, in clause 30, page 16, line 41, at end insert—
‘(h) membership of the association consisting of common rights holders, the owner of the land, tenants and holders of sporting rights.'.
New clause 3—Membership—
‘(1) The membership of a commons association must reflect local interests.
(2) At least half of the members must be elected.
(3) At least half of the members must be resident in the area of the local authority in which the common or town green is situated.'.
It is a pleasure to speak to amendments Nos. 101 and 73 in this group. Amendment No. 101 is about how the constitution should look. I cannot remember the details of the constitution that the hon. Member for Meirionnydd Nant Conwy produced on Second Reading, but I suspect that it did not include as a majority on the commons association those people who exercise rights on the common. This is a probing amendment.
If I can enlighten the hon. Gentleman—I am speaking from memory—I believe that the constitution said that the membership would be between 10 and 12, of which five or six would be commoners and the rest would have other interests. If that will be the number, it will not leave a great deal of room for elected members, for example, and it will not allow for a sufficient majority in favour of the commoners.
I thank the hon. Gentleman for reminding me how the association would be constituted. Again, those people who actively manage the common should have a majority on the association, and I know that hon. Members will also be considering ways in which people can be elected. For generations, people have contributed to producing commons that are in good heart and under sound management. I hope that the amendment will give confidence to such people so that they can continue that work and so that their vision will drive it forward in the future.
I hope that amendment No. 73 will appeal to the hon. Member for Sherwood, as it would require that meetings of commons associations should be held in public. They might want to transact some business such as financial matters, particularly financial matters involving members of the association, in closed session, but, if the amendment were accepted, the general presumption would be that the meetings would be held in public, which is best practice for public bodies transacting their business.
I rise to support amendment No. 73, to which the hon. Gentleman just referred, and amendment No. 37 and new clause 3, which are in my name and the names of my hon. Friends the Members for Sherwood and for Pudsey (Mr. Truswell). We had a debate under the previous clause as to whether meetings of the associations, now to be called committees, should be held in public. I was happy that my hon. Friend the Minister agreed to the draft orders being made available. There must be clarification on which matters would be discussed in public. I accept that the caveats will be finance and, as discussed in the debate in the other place, matters that refer to individuals who may be taking action against another individual. We would not expect such matters to be discussed in public, but I hope that they would be reported on publicly in due course.
Amendment No. 37 and new clause 3 duplicate each other in a sense, although new clause 3 is somewhat longer. It sets out what we have in mind—to give some democratic accountability to the bodies—in two ways. It provides for elections, which we hope would also include election of the commoners themselves, to give them legitimacy. We also wish the bodies to have a local essence, and we feel that that aspect would be best performed by parish or town councils.
The analogy is that where parish and town councils have allotments, they would bring forward representatives of those bodies. We feel that that is a good model, which can be replicated with commons or village greens. Parish and town councils would certainly be responsible for village greens, but it is possible that in terms of commons they do not have a say at present, and we wish to open this up to give local accountability and local legitimacy. One hopes that councils would take a strong interest in the matter. We also hope that local areas would want to take an interest in tying in such a plan with the environmental assistance that the Government make available through changes in the common agricultural policy, and to take some responsibility for it.
Although the amendments are probing amendments, they are useful in that they lay down in terms of statutory instruments how we would want the elections to take place. There are a number of details, but unless such provisions are put in the Bill or at least debated so that we know exactly what the Government have in mind, this ad hoc measure will never be teased out. I hope that the Government will respond. I am sure that my hon. Friends want to talk in more detail about how they think it might work in practice.
The amendments, including my amendments Nos. 51 and 65, raise a number of issues. Before I enter into the details, I shall mention that in this clause we are considering almost a contradiction. I can understand how it has arisen. In earlier debates the Minister used the argument for flexibility, which I support in principle, yet here we are with a standard constitution that will be subject to the affirmative resolution process in the House. Obviously, the element of flexibility will therefore be more than a little bit reduced. I am not arguing against a standard constitution, but I think that it seriously diminishes the value of using the flexibility argument against some of the amendments that hon. Members have put forward and that I am about to address.
We are talking about a plethora of different scenarios. Huge commons, and many small commons, each with a voluntary association, will come together under a large umbrella association following the Minister’s early edict. He continually refers to them as associations for the sake of the Bill, but they will operate under a much larger statutory umbrella body. They could include hundreds of rights holders or half a dozen; there could be one relevant local authority or half a dozen. We will inevitably be dealing with a huge variety.
I look forward to seeing the draft constitution when the Minister provides it for us, but it does give rise to a question. This is a general point, to which I hope he will respond. He might leave things open, but does he envisage that the management of the association should be done by some sort of board—I cannot use the word “committee” because of the earlier agreement—a group of officers or something else? I cannot imagine how it could be possible for a body with 10 or 12 members to represent all the interests in some of the larger situations.
Let us consider the area in which the constituency of my right hon. Friend the Member for Penrith and The Border is situated, and the Cumbria commoners. I do not know how many associations there are in that overall council, but I suspect there are several. I would be hard pushed to identify just 10 or 12 individuals to sit on such a body. Therefore, I am unsure that there will not be a need for a larger top body, with some sort of board, management group or something else underneath it. Perhaps the Minister will respond to that particular point. My amendments are aimed at that top body rather than at whatever management board there will be where necessary.
I understand that the Minister wants flexibility, but I have a lot of sympathy with the point raised in amendment No. 101: the majority involved should be owners of rights on the common. I want to refer to clause 31, which we shall come to and which lays down the functions. The functions of an association are quite limited and are generally agricultural. They relate to the management of agricultural activities, vegetation and the rights, which will be largely agricultural although some of them might be piscary.
I am not convinced by the argument of the hon. Member for Stroud about the need for lots of local authorities and such bodies to get involved, because we are talking about a pretty narrow sphere of agricultural functions. That is why it is important that the principal people involved are those who are carrying out such activities on the common: the owners of the rights of common. So, I support amendment No. 101.
My amendment No. 51 is slightly different, and seeks to say that the standard constitution should determine the proportion of the members who should be owners of the rights. I would go along with the majority being in that situation, as the hon. Member for Brecon and Radnorshire suggested. There needs, at least, to be a reference about the proportion of the association who should be owners of rights.
I come on to amendment No. 65, which raises an issue that I raised briefly on Second Reading and which has not yet come up during Committee. On reflection, the amendment is probably directed at slightly the wrong place in the clause, but that is a separate issue and can be addressed at another time. The principal issue is about who should be in the association. This following is not necessarily an exclusive list, but it should be inclusive. Obviously, the commons rights holders should be involved. It is essential that the owner or owners of the land should also be in the association, as should tenants of the land.
I particularly want to refer to the last group in my amendment, which is the holders of sporting rights. I wish to do so because the holders of sporting rights will hold them by virtue of the owner of the land. As I understand the law, they will be leasing the rights not from the commons or the rights holders, other than perhaps in extreme situations, but from the owner of the land. The obvious example would be those commons that are also grouse moors, but many smaller commons will have rough shooting or other conventional forms of shooting sports taking place on them. The shooting rights will be leased from the owner of the land, often for a significant period, possibly 10 years.
I know that the hon. Member for Sherwood takes an interest in such things and that the Minister will know that the value of sporting rights can be influenced over several years of practice in developing the sporting activity, habitat and so on. Therefore, I am concerned that the commons association could take action that was to the serious detriment of the holder of the sporting rights over a period of time. If someone has just signed a 10-year sporting lease when the commons association comes along and makes management decisions according to functions under clause 31, which are extremely deleterious to the sporting capacity of the land, that person would have no comeback. That would be a very serious situation.
I am not suggesting that simply being a member of an association would prevent such situations, but the holders of sporting rights should at least be in the association, which is why I included them in amendment No. 65. I hope that the Minister will understand—picking up the earlier gentle gibe of the hon. Member for Sherwood—that this is not some sort of throwback to antiquated support for landowners, but a recognition that sporting rights are an extremely valuable commodity to the individual and to the local economy of a number of areas. Grouse moors, in particular, add huge sums of money to local communities and the people undertaking rough shoots on more conventional common land will be ordinary working people enjoying a day out with a gun and a dog, perhaps. The important point is that their rights need to be taken into account, if not totally protected, in the setting up and constitution of an association, which is why they are included in amendment No. 65.
May I illustrate for the benefit of the Committee some of the problems posed by introducing too much democracy into some of these associations? The example I would like to cite relates to a common in my constituency and the Stiperstones commoners association, which has three holders of grazing rights, one of whom is retired and is not exercising his rights. The common is a substantial one covering an area of 1,000 acres, with only two practising graziers. If the local authorities and the landowner—I support the contention of my hon. Friend the Member for South-East Cambridgeshire that the landowner and the tenant of the land should have rights—were to be included in the commons association and too many other organisations were involved, the graziers, under the proposals in some of the amendments, would be automatically outvoted in associations. That cannot be right.
That is the whole point of trying to democratise these bodies: to energise graziers so that they come back to use and advance their rights properly. I accept that there may have to be a balance between the rights of the grazier, the owner and other bodies, but that is exactly the problem with a number of commons associations at the moment. They do not have any life and they are effectively inert.
The hon. Gentleman makes the point that I am trying to make. In many cases, graziers are not there to take up the grazing rights. The land does not have the capacity to sustain more livestock. Therefore, it is down to the few people who remain actively involved in it to continue to enter into management agreements to preserve agricultural activity on these commons. If we try to put in place a prescriptive system for the management of the great diversity of common lands, we are in great danger of over-regulating what in many cases requires a very light touch.
Some interesting points have been made during this debate. Amendment No. 101 would require a standard constitution or an establishment order to ensure that commons rights holders have a majority of votes in the association. Each commons association will be different because of the numbers and characteristics of its commons. It will not always be appropriate for rights holders to be in the majority in an association, especially on a lowland common where common rights are not exercised actively or perhaps even on the common to which the hon. Member for Ludlow referred where there are only two active graziers. However, when an association consists of agriculturally active commons it may be appropriate for active rights holders to have a majority. It is important to retain flexibility so that the association can be tailored to local circumstances.
The hon. Member for South-East Cambridgeshire was not questioning flexibility or a standard constitution, but how the two fitted together. If it would help him, at the end of my comments on the previous clause I said that that will reduce demands and potential costs on those seeking to form associations because they would be able to see a standard constitution agreed by both Houses. However, as for flexibility, we can vary away from that if the national authority chooses to do so to suit local circumstances.
I challenge the Minister on that matter. If he is absolutely correct, fine, but am I right that he is suggesting that the Bill is giving the national authority power to permit another constitution that is not in accord with the standard constitution that the House has approved?
Each association will be set up by order. My understanding is that, when each is set up and properly consulted on through the process of establishment, if there is a variation away from the standard that seems sensible for the local association, that will be possible. If I am wrong, I will advise the hon. Gentleman. However, I am assured that I am not.
For the purpose of clarity, is the Minister saying that the order setting up the association will take precedence over the order approving the standard constitution?
Yes, that is set out under clause 29.
Strictly speaking, the order would not then be subject to the affirmative resolution procedure because the order in its final form would be drafted by someone else and not by the House.
The standard constitution would be subject to the affirmative procedure so that, when those seeking to set up an association from the bottom up are looking at how to start and at what sort of rules would be wanted to govern the work of the association and its procedure, they would see that standard rules have been agreed actively by both Houses through the affirmative procedure. That would be helpful in streamlining and fast tracking the approach while still retaining the flexibility that ultimately we want to be able to offer. As has been said, each common and its situation is different.
The Minister has been generous all day in giving way. However, I do not follow his argument. I had a quick look at the standard orders. There is nothing untoward in them. Let us suppose that there is a huge common with lots of sporting and recreational rights, owners, grazing and even fishing rights. To bring in the democratic element and to accommodate all those interests, surely the 10 to 12 would have to be doubled. If the standard constitution that had been passed by order under the affirmative resolution procedure is then effectively doubled in size outside, would that not seem a little strange?
I do not regard that as strange because the intention of a standard constitution is to minimise the repeated need for parliamentary scrutiny of many standard forms. There is still the ability to vary away from those standard forms, which will be subject to scrutiny once the national authority brings it forward, but each time an association is set up, we do not need to go over and over again those matters that are lifted straight from the standard set of rules that have been agreed under the affirmative procedure. I hope that that explanation is helpful.
I apologise to the Minister for intervening again but, as the hon. Member for Meirionnydd Nant Conwy said, he has been generous. I want to be clear about the propriety of such matters. As the Minister said, the standard constitution will be approved by affirmative procedure. As I understand clauses 26 and 27, the order establishing each statutory body will not go through under the affirmative procedure. I am no expert in House procedure, but I find it surprising that a ministerial order can take precedence over the affirmative procedure. Surely, at least the order setting up an association should be subject to the affirmative procedure.
It would occupy a considerable amount of parliamentary time if every order were subject to the affirmative procedure. Each order setting up an individual association supplements what has been agreed, and by going through that process, we are trying to save time and make things easier for people. The Committee may want to reflect on that. If it has any further questions for me, I shall, as ever, be willing to deal with them.
The hon. Member for South-East Cambridgeshire asked about large associations and whether there will be any form of executive group. Commons associations could be set up over as large, as many or as few commons as the local legal interests support. We should expect many associations to cover more than one common, and in such cases, the number of representatives would be tailored to suit the size and type of commoners. The Dartmoor commoners council has jurisdiction over 30 commons, for example. A large association might include a governing body with smaller committees, but crucially it would still be just one association. There is flexibility in the legislation. I think that I have dealt with amendment No. 101, and I hope that I have given the hon. Gentleman sufficient reason to withdraw it.
My hon. Friend the Member for Stroud moved amendment No. 73. This amendment would add holding meetings in public to the illustrative list. The list refers in subsection (2)(c) to the proceedings of an association. Terms about the proceedings would necessarily include terms about the holding of meetings in public, so the national authority will already have the power to make that sort of provision in an establishment order or in the standard constitution.
As I said in response to my hon. Friend the Member for Sherwood, we envisage that commons association meetings will be held in public. The draft standard constitution that the Committee will see shortly provides that meetings of an association and any committee of an association—or committee of a committee, potentially—will be open to the public. However, that is subject to the proviso that an association’s establishment order can prescribe circumstances in which the public may be excluded.
Amendment No. 37 and new clause 3 look at the representation of local interests on commons associations. Amendment No. 37 would amend the illustrative list of terms that may be contained in the standard constitution or an establishment order. It would replace the reference to membership with a more specific reference that seems intended to require that at least half the members of an association should be elected, that the order should specify the local community from which members are to be drawn, and the role of representatives of town and parish councils. Similarly, new clause 3 would require membership of a commons association to reflect local interest.
The amendment and the new clause would require at least half the members of an association to be elected. Clause 30(3)(a) provides that the standard constitution or an establishment order for an association may include terms relating to the appointment of members, and it clarifies that “appointment” includes appointment by election. That is because if the number of individuals with a particular interest were small—for example, if only one or two landowners were appointing a representative—or if there were no competition for a post, an election could not take place.
The Bill contemplates that members might be appointed through an agreed procedure that does not necessarily involve a vote. I stress that elections will be used when there are sufficient numbers of persons to warrant such a process. Paragraph (a) of amendment No. 37 would prevent the use of the most appropriate method of appointing members to the association, and I hope that it will therefore not be pressed.
New clause 3 would require at least half the membership to be drawn from the local area and would also broaden the representation on commons associations to include parish and town councils. Our objective for commons associations has always been to allow landowners and those with common rights to develop more effective management practices on commons, and associations will therefore be set up to manage rights of common, vegetation and agricultural activities. They are not being established to manage the land for the wider public benefit, or to deal with all the activities that occur on commons, nor will they be given such powers.
Membership of commons associations will therefore normally be limited to those who have a legal interest in the common: namely, commoners, landowners and those holding other rights including sporting rights—we certainly regard sporting rights as being a type of legal interest over commons, and it is right that associations are representative of those who are directly affected by their decisions.
What about householders? A number of them are entirely dependent on a common, largely because of the need for access, which is the easement issue on which the Minister became expert through the Natural Environment and Rural Communities Bill. How do they get representation, and when there is a management arrangement, usually through an organisation such as the National Trust, how is that reflected in the way that commons operate? I accept that we are largely talking about agriculture and in my question I am not, but not all commons are principally about agriculture; they have much more importance in providing access to the general public and use for the other things that the Minister has mentioned.
The short answer is that if householders, or the National Trust, or Natural England or the Countryside Council for Wales have a legal interest, they would have representation. Obviously, associations can co-opt members, and there can be flexibility of set-up so that, if there were a reason to vary membership slightly for reasons on the ground, we might do that. The core thing that the Committee must understand, however, is that those who have a legal interest must have proper representation. There is nothing in the Bill that authorises interference with any easement unless the beneficiary of the easement consents.
Broadening the range of interests represented on an association would also make commoners far less likely to form associations, thus making it more difficult to achieve our objective of effective common land agricultural management. Although we do not wish to impose a requirement for local involvement, the Bill provides sufficient flexibility for other interested persons or bodies, such as parish or town councils, to be involved in the association if there is substantial support for that approach. That may be relevant on a non-agricultural common, where membership may be made up of commoners, the landowner and other interested parties such as the local authority, the wildlife trust and local inhabitants.
The wider public interest, such as public access and nature conservation, will be represented by Natural England’s oversight of common land, and in Wales by the Countryside Council for Wales. As was discussed on Second Reading, Natural England would not necessarily be a member of the association unless it had a legal interest in the land or was co-opted by the members.
We shall establish a national stakeholder group to advise on implementation of the Bill, which will provide an opportunity for involvement of wider interests.
What happens if there is a dispute about the way in which the association is set up or runs? Is that where Natural England could be lobbied or could arbitrate? A dispute between agricultural and public use is quite possible; that is why some of us were keen to have some local representation, in terms of ensuring legitimacy, for those people who clearly have a vested interest in making sure that those commons exist in future.
Obviously, we hope that, in establishing the association, we will manage to get the balance right, in terms of representation and accountability through election and so on. However, if that fails and there is a dispute, the national authority has the power to arbitrate. Under a later clause, associations can be wound up by the national authority following consultation. That ultimately is the sanction. Certainly, we would hope that Natural England would report to the national authority if it thought that there was a problem with the association not fulfilling its functions properly. I hope that that satisfies my hon. Friend.
On amendment No. 65, we certainly expect that the majority of associations will be made up of common rights holders, landowners, tenants and those with sporting rights. Those people are likely to be the majority of members on an agriculturally active common and, in making the establishment order, the national authority will have particular regard to their views, but we do not want to limit an association to that because of the situation on non-agricultural commons. As my hon. Friend the Minister for Climate Change and the Environment said on Second Reading, the Dartmoor commoners council has a veterinary officer, for example, who advises on animal welfare.
Finally, turning to amendment No. 51, which would enable the standard constitution or an establishment order to specify the proportion of members of an association who must own rights over that common, we have avoided specific requirements about membership in the primary legislation in order to allow local interests to have a larger say at the establishment order stage about how different interests in a common should be represented. It is such flexibility that we are concerned with. I hope that the hon. Member for Brecon and Radnorshire accepts that and will withdraw his amendment.
On a point of order, Miss Begg. I wonder whether you could say whether there will be a stand part debate on this clause.
Thank you, Miss Begg. I am sure that a number of us will take great comfort from the fact that the Minister put on record that, in setting up the statutory bodies to represent commons, the people with a legal right in respect of the commons should have their rightful place on those bodies. We can take some comfort from that. He suggested the people whom he had in mind—those who exercise rights, the landowner, and sporting tenants. That is of great comfort to us and to people who use commons.
How the bodies are to be made up is important, because they will have considerable powers; they will be entirely different from the voluntary associations that will need the agreement of all commoners before they can enter into agreements on environmental schemes. Clause 33, which we will debate shortly, says:
“A commons association does not need the consent of a person who has a right of common over the land for which it is established in order to do anything on the land”.
“A commons association does not need the consent of any other person with an interest in the land for which it is established in order to do anything on the land where what is proposed to be done could be done without that person’s consent by any person who has a right of common over the land.”
So those bodies really will have a new power that has not been exercised by voluntary associations in any way. That is why we are concerned that people who manage and use commons should have confidence in the associations that are to be set up, and why we have taken some time to debate the amendments. Certainly, the Minister’s statement on the matter is important, and we shall reflect on it, although we might return to the issue on Report. In light of his comments, I beg to ask leave to withdraw the amendment.
The way in which the members are appointed is important. The hon. Member for Stroud has suggested that there should be a democratic process, but other hon. Members have indicated that that might not always be the best way forward. I should have thought that commoners would want some democratic process for electing the people who would represent them on the statutory bodies, given that they will commit them to schemes and practices over which they will not have a direct influence.
On Second Reading, I indicated that there was a huge difference between the involvement of active and inactive commoners and whether a dominant tenement is in the ownership of a sole trader or a partnership—for example, whether one person may own six or seven dominant tenements around a common and whether he or she should have greater rights than a person owning one dominant tenement. Should there be some reflection of the fact that one person may have rights to graze 100 sheep and another has the right to graze 1,000? Should the many different commitments to the management of the common be reflected in a different election system?
The hon. Gentleman’s question raises another, which I hope that the Minister will be able to answer, about the system for the landowner to secure representation on the group. I envisage a situation in my constituency, which has a large number of large commons, but only two significant landowners that will, in effect, be guaranteed places in all the associations. I cannot understand how a system of election would fit in with that, or whether different systems of appointment are desirable. I should like the Minister to clarify how that will pan out.
The hon. Lady raises an interesting question. There are commons in my constituency with more than one landowner.
Although we are pleased that the Minister has spoken about the importance of people’s legal rights, it is important, if associations are to enter into environmental agreements, that they have the support of organisations, such as the Royal Society for the Protection of Birds and, perhaps, the wildlife trusts and others. I am not sure how an election would work in such cases. Perhaps he will share any ideas that he has on this tricky and rather thorny problem.
Perhaps I could return briefly to an area of confusion, and I am obliged to the National Farmers Union for drawing attention to it. The NFU refers to the clause, in respect of which we are talking about board, council, or executive members. Surely, everybody who exercises rights of common on the common will be members, as such, of the association. [Interruption.] Is that not right?
I was developing the theme. Surely, if the Minister wishes to intervene, it would be fair for everyone.
I was trying to intervene to be helpful, but I have forgotten what I was going to say.
The members of the association would be the representatives and members of the committee. They would be there by virtue of their representation of the various legal interests. In some cases, there might not be enough people for an election; when there are, there will be an election.
I am grateful for that.
I may have answered most of the questions in my intervention. The establishment order will determine voting mechanisms for electing members of the association. In some cases, weighted voting might be appropriate. We cannot give one method that would work for all commons—as we have discussed, they are so varied and there are very different balances between landowners, commoners and so on.
We need to retain flexibility and to ensure that how the associations are formed and properly consulted on is appropriate to each case. It may well be that in the constituency of my hon. Friend the Member for Bishop Auckland (Helen Goodman) one or two landowners would be representative because of their legal interests in a number of associations, if one big one had not been formed. However, unlike at present, such landowners would no longer have the veto over what went on, because the associations would make the decisions.