Commons Bill [HL]

This has been quite a group of amendments. I must not forget that at the end comes government Amendment No. 157, to which I must speak. Amendment No. 152, moved by the noble Baroness, Lady Miller, would enable the commons association to be granted the function of claiming entitlements to environmental and other payments from organisations and bodies from the local to the European level. Amendment No. 160 would include in the illustrative list of functions that can be given to a commons association the ability to form a trading arm. Presumably that could be to allow an association to market produce from the common which may assist in supporting agricultural activity on the common. These two amendments add extra activities to the illustrative list of functions that can be given to an association in subsection (3). In our view, these two forms of activity are better regarded as the type of action which a commons association might be able to undertake under its ancillary powers in Clause 31. It is a slightly technical point, particularly as these are probing amendments, as the noble Baroness said, rather than being additional core functions of an association, which is where Clause 30 comes in. Core functions tend to relate directly to management of the land, where ancillary powers are actions that facilitate—that is the crucial word for Clause 31—the operation of an association or are conducive to its aims. Clause 31 allows an association to undertake a wide range of activities that will facilitate it in carrying out its functions. They include activities that we will come to, such as raising money and employing staff. The creation of a trading arm, or distributing money from an agri-environment scheme, might well be activities conducive to the functions of an association. If they are, they can be undertaken under Clause 31. Clearly, we do not need to add this to Clause 30. Therefore, both the items covered in the two amendments tabled by the noble Baroness are possibilities for Clause 31, depending on what the statutory commons associations decide they want to do. Amendment No. 154 would require the national authority to make regulations defining the types of unlawful boundaries and encroachments which a commons association may be given power to remove. Part 3, which replaces Section 194 of the Law of Property Act 1925—which, perhaps more in hope than expectation, we will come to soon today—will make clear the types of works which cannot be carried out on common land without the consent of the national authority. This will include the erection of fencing or other boundaries which have the effect of preventing or impeding access to or over common land. In addition, some local Acts or provisional order confirmation Acts contain prohibitions on works on particular commons. In this clause, what we mean by ““unlawful boundaries”” are fences and other boundaries which have been erected in breach of statutory provisions. By ““unlawful encroachments”” we mean, for example, the situation where an owner of land adjoining a common has extended his garden on to the common without any right to do so. We believe that this provision is sufficiently clear and does not need any further explanation in regulations. We do not want to increase the regulation-making powers of the national authorities any more than is necessary. The noble Baroness, Lady Miller, asked about the single farm payments. Her point applies to any farmer who does not comply with the cross-compliance regulations—whether they be farmers on common land or on other land. She also talked about marketing produce under local labels. I want to encourage very much what she said on that. I entirely agree with her. It is just the sort of initiative and outcome to which statutory commons associations might rightly aspire. Of course, funding is being provided by the ERDP for just such marketing initiatives. Amendment No. 161B includes in the illustrative list of functions that of acting as a consultee on issues related to rights of access and nature conservation. We do not believe that commons associations should be in the business of providing advice on nature conservation or access issues. Nature conservation is the province of Natural England and the Countryside Council for Wales. For the most part, commons associations will be made up of common rights holders, landowners and holders of other rights in common land such as sporting rights. They are being established to manage agricultural activities, vegetation and common rights, not to manage access. We do not think they are suitable bodies for consultation on access issues as they will not have the necessary skills and expertise which one would expect a consultee to have on such issues. We would expect that, once an association is established, other bodies will naturally want to engage with it on a variety of issues affecting common land, as it will represent the views of some of the key interests in the common. That does not preclude an association from voluntarily responding on such issues, as an association does not require a specific function on the face of the Bill—or even in its establishment order—to engage in such discussions. We believed that Amendment No. 161A was a reference to Section 13 rather than Section 14 of the Wildlife and Countryside Act, which makes it an offence for any person to damage, remove or sell any plant listed in Schedule 8 to the Act. However, I am told that, whichever one it was, my answer would be the same. If that person can show that the action was an incidental result of a lawful operation and could not reasonably have been avoided, no offence is committed. A commons association must comply with the requirements of all statutory regimes that affect its activities or the land over which it operates. Thus, Sections 13 and 14 of the Act already apply to them, and we do not think that there is need to refer to it in the Bill. Amendments Nos. 158 and 164 deal with bracken. I said on another occasion that where the noble Earl, Lord Peel, and the noble Lord, Lord Greaves, form an alliance, the Government are in trouble, but when you add to that the noble Duke, the Duke of Montrose, the noble Lords, Lord Chorley and Lord Livsey, and my noble friend Lord Williams, we had better watch out very closely.