It may be a great clause, but I want to invite the Minister to explain, briefly, why that is. Without rehashing the ground that we have already covered, I should like to make two points. The first is that the Minister said earlier that the clause is specifically intended for minor and temporary works; that is its purpose. It does not say so anywhere, so I invite him to clarify that point. If that is the intention of the clause, should it not say so?
The second point is that subsection (1), which defines the orders, makes a lot of specific statements about
“the carrying out by a specified person of specified works on specified land; or...by a specified person, or a person of a specified description, of works of a specified description,” and so on. The orders are going to be so specific that one wonders whether they will be of any value for exemptions. Officials of the national authority will have to do so much work looking at such a proposal to decide whether to exempt it that they might as well approve it. I had understood from the Minister’s interventions under clause 38 about this clause that it would deal with the problems that Opposition Members have mentioned, rather than unnecessarily requiring the national authority to deal with piffling—the Minister himself used the word trivial—issues.
As drafted, the clause does not achieve the objective that the Minister has proclaimed for it. I accept and support his remarks, but they do not reflect what clause 43 says. I suggest that, by the time officials have done all the work described in the clause in order to decide whether to exempt any work, the time, bureaucracy and cost—not just to the taxpayer but to the applicant—will have been so great that they might as well have gone through the approval procedure. That was the straightforward point that I wanted to make. I look forward to the Minister’s trying to clarify it for us.
The hon. Gentleman is right to say that we need to clarify the point. This morning, under clause 38, the Minister was clear about the use of the words “temporary” and “minor”. I am keen to get that on the record. The problem is that we could have different views about the meaning of temporary and minor. I take temporary to mean weeks and months, rather than years. I have seen applications from bodies that are called temporary, but stretch into years. It would be useful to have an idea about what is considered temporary. We also need to discuss what constitutes minor.
This morning, the right hon. Member for Penrith and The Border (David Maclean) gave a number of examples of things that were clearly temporary, and the Minister told us that electric fencing would not be viewed as temporary. He is right. In many cases, clause 38 should be used. However, in response to the hon. Member for Meirionnydd Nant Conwy, he said that tank traps could be regarded as temporary. I am not sure that that is correct. We are talking about matters of judgment. I agree with the hon. Member for South-East Cambridgeshire that the measure will create a lot of work, a lot of difficulty and a lot of angst. It is in our interests to be as clear as we can about what the clause stands for and what we mean by temporary and minor.
On a point of information and to try and enlighten the Committee, I should say that the hon. Member for Sherwood (Paddy Tipping) is quite right: we should tease out a bit more information on this issue. On the main road between Dolgellau and Bala, in my constituency we had temporary traffic lights for 27 years.
I want to return to the point about minor works and fencing. It is not fanciful; almost every day of the week in the Cumbrian fells and around the country, gaps appear in stone walls and six ft of wall falls down. Every farmer then automatically sticks a little bit of electric fencing or sheep netting on it. Under clause 38, they would have to apply for permission for that temporary fencing.
The Minister says, “No, don’t worry; clause 43 can exempt that sort of thing”, but will he confirm that clause 43 is general enough to exempt all farmers in that hypothetical situation, or would the farmer who has found a gap in his wall have to get a specific order to be exempted from the provisions of clause 38? I shall assume that none of us wants a farmer who puts up five yards of fencing for six weeks to have to go to the Secretary of State for an exemption.
Generally, if a wall is bounding the common—on the perimeter, as is often the case—it is not part of the common, but the surrounding farm land. Therefore, the farmer can do what he likes with it. Obviously it is a different ball game if it is inside the common.
There will be a mixture and many walls will be inside the common. Cumbria is awash with walls; it is still a common, but there are walls across the parish boundary and temporary walls are used to hold sheep, particularly at lambing time.
On walls inside the common that are caught by the provision, will the Minister reassure the Committee that clause 43 will allow him to make a general order? He might be persuaded before Report that there is a genuine problem relating to the temporary stopping up of a hole in a stone wall with a fence. He might think, “Yeah, that’s okay, that is smaller enough, de minimis, minor and is not going to drive a coach and horses through the law; I am happy to allow that”. Under clause 43, will he be able to make general regulations that will apply to every farmer or commoner in the country?
The right hon. Gentleman is talking about stopping up walls, but maintenance to existing works does not need consent.
We are narrowing it down, but what happens when all the stones have fallen down and there is a gap in the wall, which the farmer plugs with a temporary fence while he spends the next few weeks sticking the stones back up and rebuilding the wall with the intention of doing a bit a dry stone walling or dry stane dyking? Is that maintenance? It is the erection of a fence, not maintenance.
My interpretation is that that would be maintenance because the farmer would not be erecting anything new or substantial while he maintains the wall. If I am wrong, I shall write to the right hon. Gentleman, but I am pretty sure that that would be the case.
I am grateful for that; we are getting some elucidation, but still dodging the point. The regulations that can be made under clause 43 are specific to individuals and commoners who have to come along and ask for an exemption. If the Minister finds another category of minor works that he thinks is perfectly okay to exempt under clause 38, such as fencing, it does not seem that clause 43 would provide the power to make that general exemption apply to everyone of a particular category. It seems that, under clause 43, he can make an exemption only once someone applies and goes through all the procedure to get that exemption and become a specified person with a specified works in a specified area. Will he be able to make general exemption powers apply to everyone without their having to apply?
I briefly endorse the comments made by my hon. Friend and by the hon. Member for Sherwood. I would like also to highlight two particular problems.
It seems unnecessary to burden commons associations with the cost of providing the input to enable an order on perhaps minor issues to be written in such specific language. The bureaucratic processing of all those orders would also increase costs in the Minister’s Department and should not be treated lightly, not least if he hopes to meet his Gershon efficiency targets.
I am grateful for this debate because it helps to clarify matters. I was asked by the hon. Member for South-East Cambridgeshire and my hon. Friend the Member for Sherwood to clarify that we regard the provision as being for minor and temporary works. We do regard it as such, and I shall look at whether it is appropriate to put that in the clause title. However, for now, I can give the clarification that the Committee seeks.
There have been other questions about the clause being too specific. There is a danger that because the word “specified” is repeated so many times in subsection (1), one becomes blinded to some of the other words. Subsection (1)(a) is very specific; it uses the word “specified” three times. However, it ends with the word “or” before moving on to subsection (1)(b), which starts with “a specified person”, but then becomes more general by referring to
“or a person of a specified description, of works of a specified description on—
(i) any land; or
(ii) land of a specified description.”
Clearly, that allows us to issue exemptions to categories of works, rather than applying, as does paragraph (a), to specified persons doing specified works on specified land. I hope that that helps the Committee.
My hon. Friend the Member for Sherwood talked about tank traps. As I said to the hon. Member for Meirionnydd Nant Conwy, the Country Land and Business Association made an interesting point about tank traps. However, I said also that if we could find a suitable device, we might think about it. However, I am not sure that a tank trap is that device. I hope that that is helpful.