Clause 32

Commons Bill [Lords] – in a Public Bill Committee on 27th April 2006.

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Ancillary powers

Photo of David Maclean David Maclean Conservative, Penrith and The Border 9:00 am, 27th April 2006

I beg to move amendment No. 52, in page 18, line 13, at end insert—

‘( ) In exercising its powers under subsection (1) the association may appoint agents to act on its behalf and such agents may include voluntary commons associations which are members of the statutory body.'.

Photo of Michael Weir Michael Weir Shadow Spokesperson (Work and Pensions), Shadow Spokesperson (Trade and Industry)

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

No. 62, in clause 32, page 18, line 15, at end insert

‘including agreements with commons associations, or with such persons as the council considers to represent the interests of persons exercising rights of common over the land.'.

No. 74, in clause 32, page 18, line 18, leave out paragraph (d).

No. 102, in clause 32, page 18, line 18, at end insert—

‘( ) make arrangements for the resolution of disputes;'.

No. 53, in clause 32, page 18, line 19, at end insert—

‘(f) appoint tribunals for the resolution of disputes.'.

No. 103, in clause 32, page 18, line 19, at end insert—

‘(f) establish tribunals.'.

No. 75, in clause 32, page 18, line 25, at end add—

‘( ) The powers of a commons association to acquire land as specified in subsection (2)(d) includes a power to cause its registration as common land or as a town or village green'.

No. 91, in clause 32, page 18, line 25, at end add—

‘( ) The powers of a commons association to dispose of land as specified in subsection (2)(d) shall be subject to provisions of section 16 (Deregistration and exchange: applications) as if the association is the owner of the land.'.

Photo of David Maclean David Maclean Conservative, Penrith and The Border

The amendment, tabled in the name of my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice), is a straightforward probing amendment that seeks information from the Minister on whether, in exercising its powers under clause 32, a statutory commons association could appoint agents—people to act on its behalf—that could include a voluntary commons association. The Minister may say that that is taken as read and is already in the clause, or is somewhere else in the Act, but I just want an assurance that it is not precluded by  the Act, and that it would be legitimate for a voluntary commons association to be an official agent—paid, if necessary—of the new statutory commons committee.

Photo of Roger Williams Roger Williams Opposition Whip (Commons), Shadow Minister (Environment, Food and Rural Affairs)

I am sure that it will be a great pleasure to serve under your chairmanship, Mr. Weir. I understand that it may be the first time that you have chaired a Standing Committee, and I am sure that you will find that we all behave in the best possible way. My party intends to support the Bill—the Minister has the privilege of steering it through and he has all-party support. However, it is our intention to improve it as muchas possible, because this is a once in a lifetime opportunity, and that is why we have tabled amendments.

Amendment No. 62—in the name of the hon. Member for South-East Cambridgeshire and myself—is similar to amendment No. 52. The Minister already indicated his anticipation that, whenthe statutory bodies representing commons are established, they may not be set up in relation to a single common but instead for a group of commons. In covering a range of commons, voluntary associations will still exist, and will still have purpose and function, bringing knowledge of local issues to the fore.

The amendment is therefore a probing amendment, as the right hon. Member for Penrith and The Border (David Maclean) said, and I hope that the Minister will say that what it proposes is how things should indeed work, and that the statutory association can act on behalf of the voluntary association in establishing agreements, including environmental agreements that will bring resources to commons, in order that commons achieve their agricultural and public purposes.

Amendment No. 102 proposes making arrangements for dispute resolution, and there is a further amendment that is intended to establish tribunals. On reflection—it is not just the Minister’s prerogative to reflect—our amendment No. 53 isbetter than amendment No. 103. Much of the implementation will be done by means of regulation, and I hope that statutory bodies will be given the power to resolve disputes, because if commons associations are to be more active in commons management, from time to time there will bedisputes about management, about implementation of agreements, and about the role of individual commoners. What we do not want is a costly system of court applications for every dispute, so we want the Bill to include a means for establishing dispute resolution procedures.

The amendments are small ones, but will be of great import when the statutory bodies are set up. We would like the Minister to consider them, and in his wisdom, agree to them in due course.

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

May I apologise for my delay of a second or two in arriving, Mr. Weir? I thank my right hon. Friend the Member for Penrith and The Border for his words. As he rightly said, amendment No. 52 is designed to ensure that the statutory associations, or  whatever we end up calling them, can appoint voluntary associations to act on their behalf—in other words, act as agents.

The idea will not be completely new to the Minister, as it has been discussed with his officials. It came from the National Farmers Union and the National Sheep Association; they, obviously, are involved in many of the voluntary associations and are anxious that it should be possible to make such appointments. If the Minister said that the amendment was not necessary and that such powers were implicit and did not have to be in the Bill, that would be acceptable, but there would be no harm in putting them in the Bill. Nothing would be lost and some things would be gained by making it clear that an association “may” appoint agents to act on its behalf.

Amendment No. 62, which I tabled and to whichthe hon. Member for Brecon and Radnorshire(Mr. Williams) added his name, is very similar, apart from the obvious point that it relates to a different part of the clause. It goes slightly wider than appointing agents; it is about enabling other sorts of agreement to be made with commons associations. Such agreements might not be purely agency arrangements. They might be about different things, perhaps in respect of the points that we have discussed several times—conservation or stewardship agreements with Natural England, for example. The statutory and voluntary bodies may well need to enter into such agreements. It is important that there should be a power in the Bill for the statutory body to make agreements

“with commons associations, or with such persons as the council considers to represent the interests of persons exercising rights of common”.

The hon. Member for Brecon and Radnorshire kindly said that he thought that amendment No. 53 was better than his own—although he referred to it as “our” amendment, and it is mine. Never mind; he is very generous. The amendment would mean that tribunals would be appointed for the resolution of disputes. We touched on that on Tuesday in talking about the end of the commons commissioners. Although the amendment is about a slightly different aspect of the issue, it is still about resolving disputes over rights on the commons for which the statutory body will be responsible.

As the hon. Member for Brecon and Radnorshire said, we do not want to resort to the courts, although under the Bill as it is now drafted it seems that the only way of resolving disputes would be through them. Nobody thinks that a satisfactory situation, so we propose that a commons association should have the power to appoint tribunals to resolve disputes relating to their powers, although not disputes that relate to things beyond their functions.

The amendments are straightforward, but important for ensuring that statutory bodies operate according to our cross-party belief—that they should operate in the best interests of the commons and those who use them. We are anxious that the system should work, and the amendments would help it to work; that is why I tabled them.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

It is an unrivalled privilege and pleasure to serve under  your wise and able chairmanship, Mr. Weir. That is enough flattery for one morning, but it might ensure that I get called later in the proceedings—who knows?

I support amendments Nos. 52 and 62, as they are sensible. They may be of a probing nature, but it is important that the Minister should have an opportunity to explain whether the powers would be available in the circumstances.

On amendment No. 62, voluntary commons associations have done an excellent job in many areas throughout the United Kingdom and nobody would wish to see them disappear. Their expertise is there, it should be used and if it is to be used on an agency basis, all well and good and I think that the Minister takes the point. He understands and said on Tuesday that he accepts they do a good job. We need to ensure, on a belt-and-braces principle, that we see whether it is possible to bring them in on an agency basis.

I wish to speak briefly to amendments Nos. 102, 53 and 103 and discuss the whole idea of establishing tribunals. The Minister may say that that exists somewhere within the Bill. I have not found it, nor has the hon. Member for South-East Cambridgeshire. I do not think that any of us have found it yet. If it does exist, all well and good. The Minister can then say on the record that it does exist. If it does not, it is a problem.

On Tuesday we touched on the idea of rectifying mistakes. Unfortunately, I am still unhappy about that because there are still many mistakes under the Commons Registration Act 1965, which are with us today and cause great aggravation—for example, when a person has wrongly registered far too many rights, ultimately causing over-grazing, and friction in the commoners association.

I am not saying that the Bill will give rise to disputes. However, the truth is that we are dealing with competing interests. On Tuesday we referred to the balance between the commoners, the owners and others who use the common for recreational purposes. It is important that some mechanism is provided for the simple resolution of disputes without recourse to the courts. That is not really a viable option because of the time it takes and the cost.

We can legislate for dispute resolutions in an alternative manner, which I think would be preferred. The amendments are good and need to be debated.

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

I cannot put more eloquently than the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) the pleasure that I have in serving under your astute chairmanship, Mr. Weir. I now beg your indulgence by asking whether I can briefly dwell on clause 27(5)(b) on which the Committee divided last Tuesday, when we met previously.

I am grateful to my hon. Friends who supported my principal argument about flexibility. I have reflected on the cause for the Division about the wording of clause 39, which we will be debating later. It would be possible for me to amend the clause to resolve the issue, but having thought clearly about our debate, I thought that it would be helpful to table an amendment on Report to amend clause 27(5)(b) along the lines of that which  we discussed on Tuesday, so that we can pay greater regard to active commoners when deciding whether to set up a commons association.

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

I am grateful to the Minister for giving way and I am even more grateful for his generous words. It shows that we can lose a vote and still win, which is a novel achievement. I was fairly hard in my response to his argument on that occasion. After serving with him on a number of Committees, I have come to expect his sensible, serious and analytical approach. I am pleased that he has taken the mature approach of looking back at what took place and has realised that there was some sense in what we said.

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

I thank the hon. Gentleman for that. At one point in Committee on Tuesday, I described myself as a flexible friend and I want to continue to be one. I shall now address the matter in hand and will start by saying a few words about clause 32 as a whole. It provides for an association with wide ancillary powers so that it can carry out its functions in the most effective manner. Subsection (2) provides some examples of the activities that fall within the remit of the wide power, but it is not exhaustive in respect of the possible uses of that wide power. It is informed by subsection (1) under which an association

“has the power to do anything”.

We should be mindful of that when considering the amendments.

I am pleased to tell the right hon. Member for Penrith and The Border that, as he anticipated, amendments Nos. 52 and 62 are unnecessary because commons associations already have such powers. There is the broad power that allows a commons association to do anything that it considers will facilitate, or is conducive or incidental to the carrying out of its functions. An association can already appoint agents to act on its behalf and enter into agreements. The ancillary powers may well include appointing an agent such as a voluntary commoners association to carry out various tasks on its behalf or enter into an agreement with representatives of such an association. I hope that I have given the reassurance that the Committee wanted.

Amendments Nos. 53, 102 and 103 are unnecessary because such powers are already available toassociations. The Bill enables them to appoint a non-statutory tribunal or to undertake dispute resolution procedures, if that would assist them in their functions. As the hon. Member for South-East Cambridgeshire said, that power is limited to activities within the scope of the functions that may be given to the association. A dispute resolution tribunal established by a commons association would therefore not be able to deal with disputes concerning, for example, the registration of land or rights or issues concerning access or recreation. It would be inappropriate for it to have a formal role in resolving issues outside its remit.

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

As we have discussed, each association is set up with its own order, at which time I hope that dispute resolution procedures would be agreed. They could be updated if necessary. If I need to give the hon. Gentleman more information, I shall write to him and other members of the Committee unless inspiration comes to me in the meantime.

Photo of Roger Williams Roger Williams Opposition Whip (Commons), Shadow Minister (Environment, Food and Rural Affairs)

The hon. Member for Meirionnydd Nant Conwy made a good point because the statutory body representing commons could enter into an agreement with the Department for Environment, Food and Rural Affairs, Natural England and the National Assembly for Wales about the management of the common. If one commoner failed to comply with the management agreement, that would put in jeopardy the benefits that would flow to the commoners and the common itself. Such matters are not trivial; they are important.

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

Yes. The next clause that we shall be discussing focuses on the enforcement of rules, which will have some bearing on the hon. Gentleman’s point. As I said, I may write to him or inspiration may suddenly arrive.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

Yes, the documents were under my bed. Unless I am mistaken, I can find no reference in them to a dispute resolution, which is an important issue. I urge the Minister to ensure that there is a mechanism within the statutory instruments for dispute resolution.

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

The debate is useful, because it may inform us when we draft the rules. The rules could provide a requirement to comply with the decision of a tribunal. Obviously, the extent to which the tribunal will have authority would have to be defined, and it will depend on the nature of the dispute, but it has been useful to flush that issue out, and to find out whether we would need to put something in the rules, which will come through by order.

My hon. Friend the Member for Stroud (Mr. Drew) is not here—[Interruption.] Oh, he is here now. Very good. Well, I will look forward to hearing his wise words on the other amendments.

Photo of David Drew David Drew Labour, Stroud

I apologise for my lateness, but alarm clocks work only occasionally. I am delighted to serve under your chairmanship, Mr. Weir.

My amendments are purely probing amendments. I caught the latter part of what the Minister was saying about the other amendments. My amendments are  simply intended to clarify the situation as regards the acquisition or disposition of land. That should be allowed to happen in a way that does not fetter any other arrangements. The amendments are really about getting further amplification on what the Government intend to do if a dispute occurs. How can it be settled amicably, rather than being fought through the courts? Will the Minister explain exactly what the Government have in mind?

The rules will be made through secondary legislation, but will there be a code of practice of some description to explain to commons associations—or committees, as we are to call them—how to go about acquiring additional land? Or they may wish to sell a piece of land when they need to raise money—hopefully, as we said on Tuesday, to replace like for like. We would certainly like to know more about that.

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

All three amendments from my hon. Friend are linked to the power of a commons association to acquire or dispose of land, as we have heard. I am grateful to him, because his amendments allow me to get certain matters on the record in respect of those issues.

The power to acquire or dispose of land is one of the illustrative powers that a commons association might use to help it achieve its purpose. We do not expect that a commons association will engage in the buying and selling of land on a regular basis, but there may be instances when it wants to make use of that power. For example, if a small piece of the common was to be sold off, the association might want to buy that land to ensure that it did not fall into what it would regard as the wrong hands, or an association might want to dispose of any land that it had acquired in order to raise funds. The land in question may not necessarily be just common land—it could be a lease on an office, for example. We need to ensure that commons associations have sufficient flexibility to carry out their functions in the way best suited to their circumstances.

Amendment No. 75 is unnecessary because a commons association, like any landowner, can create new common land under common law by simply creating rights of common over that land. It can also voluntarily apply for the registration of the land as a town or village green under clause 15, without having to show 20 years’ use. If an association were to sell common land that it had acquired, the land would remain registered common land, as is the case with any landowner selling common land. The exchange provisions in clause 16 apply to any landowner seeking an order for the exchange of land, so there is no need for a special reference to commons associations as is suggested in amendment No. 91.

My hon. Friend asked about a code of practice on how to acquire additional land. We will be working with Natural England and the Countryside Council for Wales to provide advice to commons associations on their activities and functions. We would not expect to give detailed advice on commercial matters such as land purchases; that is not for Government. However, we will seek to provide useful guidance. I hope that that helps my hon. Friend.

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

I am grateful to the Minister for his responses to the amendments in my name, and to those  in my name and that of the hon. Member for Brecon and Radnorshire. I fully understand the Minister’s comment that they are unnecessary, inasmuch as clause 32(1) provides such wide powers that it covers all the other things. It is difficult to refute that, and I appreciate that the Government are loth to start adding examples to the Bill. Nevertheless, it is important that those points have been raised andthat he has made it absolutely clear that agencies, agreements with other organisations and dispute resolution are properly covered.

Although I listened carefully to the Minister, I am slightly concerned. I suspect that every Member now has a copy of the sample “Commons Associations (Standard Constitution) (England) Regulations 2006” and “West Barsetshire Commons Association Establishment Order 2006”, but nothing in either of them refers to how the associations will carry out their business. The west Barsetshire sample refers to the functions of the establishment, the application of the standard constitution, the functions of the association and the rule-making procedure—how the register will be maintained and members appointed—but nowhere does it explain how the association will carry out its functions. That is why clause 32 is terribly important.

Although I appreciate the Minister’s statement that our debate informs the drafting of those rules, it is important that the issues that we have discussed such as agencies, agreements, dispute resolution and tribunals are clearly put into the constitutions so that there can be no doubt that the associations have those powers and are expected to use them to resolve disputes. People need clarity. The purpose of the amendments was to improve association delivery.

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

I shall just add further clarification on disputes. The findings of the tribunal that the association will have the power to set up will be binding if they relate to the enforcement of rules set by the association, such as commoners’ compliance with grazing reductions, but they will not be binding on issues outside the association’s remit. I hope that that is helpful.

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

It is helpful, and it is what most of us understood. I am grateful to the Minister for his clarification. This short debate has been useful. On the understanding that the new draft rules will include those points, so that they are clear to everybody, I shall invite my right hon. Friend the Member for Penrith and The Border to undo the damage that he did in the beginning.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Roger Williams Roger Williams Opposition Whip (Commons), Shadow Minister (Environment, Food and Rural Affairs)

I rise to make one short point about clause 32. On Second Reading, I asked the Minister a question about the European convention on human rights. If a statutory association enters into an agreement on behalf of its members—we have considered the proposed standard constitution order—  representation from the graziers will not be measured in large numbers of people. A small number of people will be making decisions on behalf of a large number of people. One issue was that as part of that agreement, people would have to reduce the number of animals that they graze on the common, effectively reducing their rights. How does that stand in terms of people being able to enjoy their property? We are talking about a statutory body taking a decision on behalf of individuals whose right to enjoy their property is protected under the European convention on human rights. Has the Minister considered that issue? Will he share his thoughts with us?

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity) 9:30 am, 27th April 2006

I am delighted to share my thoughts on that issue. As with all legislation, there is a statement on the face of the Bill that its provisions are compatible with the European convention on human rights. A wide consultation process, which we sketched out on Tuesday, is gone through in setting up the associations, so that all those with a legal interest are represented. That enables their interests to be heard in the association. We expect that any restriction onrights will be underpinned by an agri-environment agreement, which will compensate commoners for their loss. That is also relevant to ensuring that those rights are properly respected and that decisions are for the greater benefit of members. I hope that my response assists the hon. Gentleman, and that the clause will stand part of the Bill.

Question put and agreed to.

Clause 32 ordered to stand part of the Bill.

Clauses 33 to 35 ordered to stand part of the Bill.