Commons Bill [HL]

moved Amendment No. 181:"Page 17, line 18, leave out subsections (4) to (6)." The noble Lord said: Amendments Nos. 181 and 182A are further examples of the many steps that we have taken since Second Reading to respond to the concerns expressed to us, inside and outside the Chamber, about the Bill as introduced. Those representing owners of commons and holders of sporting and similar rights pointed out to us that subsection (4) of Clause 31 would substantially change the status quo on common land. To take one example, on a managed grouse moor the subsection would potentially have allowed an association to begin burning the heather itself instead of, or in parallel with, those currently entitled to do so—and without their consent. At Second Reading, the noble Lords, Lord Livsey and Lord Inglewood, and the noble Baroness, Lady Miller, identified potential difficulties in protecting the owner’s rights. An establishment order could have avoided such an outcome by making particular provision about consent, as subsection (6) enables. But, understandably, people said to us that the Bill itself should prevent such an outcome arising at all. We gave careful consideration to that point and concluded that those arguments had a lot to be said for them. The result is these two government amendments. Amendment No. 181 removes subsections (4) to (6) of Clause 31 to pave the way for its being replaced with a new clause that deals only with consent provisions. I commend my noble friend Lord Williams for his foresight in proposing the deletion of those subsections. The second government amendment, Amendment No. 182A, outlines the revised consent regime for commons associations. It is very different from the one in the current version of the Bill. Its effect is that a commons association must now obtain the consent of any person for undertaking activities on the land wherever the consent of that person would normally be required were it not for Part 2 of the Bill. There are two qualifications to that. The first is that a commons association does not have to get the consent of any common rights holder for doing anything on the land. Secondly, where an activity can be undertaken by a common rights holder without the consent of any other person, an association will also be allowed to undertake that activity without the need for consent. What we have in mind is this: if, for example, there is a custom that the commoners may cut or treat bracken without the need to seek the agreement of the owner—this is quite topical to today’s debate—the association may also undertake that activity without consent. Where consent is required for an activity, the association may serve notice on the person whose consent is required. If no response is received within not fewer than 28 days after the notice is served, that person is regarded as having given his consent and the association may undertake the activity. If the person refuses to give consent for that activity, the association may not do it—let us be clear about that. Where the owner or other person whose consent is needed cannot be traced, the association may seek consent through posting notices on the land. Again, if no response is received within not fewer than 28 days, consent is treated as having been given. That aspect of the consent regime will enable a commons association to manage unclaimed common land. I know that that is an issue of some concern, expressed in particular through Amendment No. 85, tabled by the noble Lord, Lord Livsey. The Government’s amendments offer an important but practical approach to improving the management of unclaimed commons where an association has been established. This new consent clause protects the owner’s interest in the land by restricting the activities that can be undertaken by an association without the owner’s permission. Our starting point is this. Where a commoner can currently undertake some activity on the land without any person’s consent, the association should be able to do that thing without consent. If there are no commoners, the association will not be given this dispensation. Where an association may want to undertake some activity on the land—such as burning the vegetation—which is not part of the exercise of a right of common, the consent of the owner would normally be required for that activity. The procedure for obtaining consent would have to be followed and, if consent was not forthcoming, the association would not be able to undertake the activity. In this way, the rights of owners and other interests will be protected. Amendment No. 182 tries to ameliorate the effect of the consent regime in the Bill as introduced. I congratulate the noble Baroness on that. However, I would argue that it has essentially been superseded by our amendment, which goes further in terms of the consent obligations placed on an association. Her amendment means that an association would have to obtain the consent of a person only where there are five or more persons whose consent is required. Thus, on commons where there might be a small number of owners, the association could then undertake many activities without the consent of the owner, which would be inequitable. I hope that in the light of what I have said, the noble Baroness will agree that her amendment is not needed. I beg to move.