Commons Bill [HL]

This has been a useful debate. Let me try and persuade noble Lords why Clause 34 is important. They will be aware of the various longstanding management mechanisms for commons that pre-date the Bill. Prior to the fundamental reforms to the law of property that took effect in 1926, a manorial court frequently presided over the exercise of grazing rights on a common. Some might feel that, had that particular reform never been enacted, commons might have been better served. Be that as it may, manorial courts have, for the most part, and with honourable exceptions, either ceased to exist or ceased to exercise effective oversight of the way in which commoners exercise their rights. The vacuum they have left behind is perhaps the key reason why we are trying to enact Part 2 of the Bill. There are, however, some courts—leet and the like—still in existence. To the extent that they still work well or have some wider social or ceremonial function that is locally valued, we are of course not in the business of sweeping them away just for the sake of it. But let us suppose that the legal interests in a particular common that has a court leet conclude that the time is right to move on to avail themselves of the powers and functions that are potentially available to them under the Bill. Suppose that they also tell us that they would actually prefer it if the existing court were wound up to avoid any confusion or possible conflicts in functions. It seems right that we should be able to respond positively to such a request. I ask noble Lords to consider another, rather less romantic type of case, contemplated by Clause 34(2). The Commons Act 1908 referred to in subsection (2)(b) allowed regulations to be made controlling various aspects of the turning-out of stock on a common. Some of those regulations are still in force, yet they are exactly the sort of issues on which an association might seek improved powers under the Bill. The association would not want to have two different sets of controls in place on the same activities; it would want and deserve clarity. If the association wanted the 1908 Act regulations to go, we should be able to respond positively. The same would be true if the association wanted to switch from its current powers under an 1899 Commons Act scheme of management, as referred to in paragraph (c), or under an order made under the Commons Act 1876, referred to in paragraph (d), and given effect by a confirmation Act, and instead take improved powers under this Bill. We should be able to abolish, revoke, repeal or vary such arrangements in response to local demand, so long as we are satisfied that there is a good case for doing so and that nothing useful will be lost. Just to be sure, we have put in place a suitable safeguard. Both the 1876 Act orders and the 1899 Act schemes invariably carry with them statutory rights of public access. Sometimes the rights were expressed as being only for local people but they have recently been extended to cover the public as a whole by Section 15(2) of CROW. Plainly, we must not sweep them away, too, as part of any over-zealous tidying-up that we are being asked to carry out under a Clause 34 order. Clause 34(3) responds to that difficulty with a guarantee that we can do no such thing with one of those orders. If it made sense to change or revoke one of those orders or schemes, there would have to be a specific saving to preserve the public right of access. The same consideration would apply if we were to use an order to modify or repeal a local or personal Act—as referred to in paragraph (e), which the noble Baroness talked about—affecting management of a common or scheme of management made under a local or personal Act. Usually such arrangements work well and would act only if the local analysis were that the purposes set out in the existing provisions might conflict with the purposes of a commons association established under the Bill. Again, there would be absolute protection for any public access arrangements created by the local measure. We would also be alert to any other possible impact on the public interest. The clause is not about distant bureaucrats sweeping away valued local provisions; it is about ensuring that government have the capacity to respond positively if, and only if, an association asks us to remove an existing measure that might conflict with a new power that it wishes to have conferred on it. Any public access that comes with the measure will be preserved by any order we make. In addition, the order itself would be subject to the negative resolution procedure, which is a standard requirement of Clause 53(4). On that basis, I argue that this clause plays a valuable practical part in this Bill and that it should stand part. Amendment No. 189, tabled by the noble Lord, Lord Greaves, is unnecessary. The order referred to in the clause is an order under Section 25 that establishes a commons association. The establishment procedure requires the appropriate national authority to consult local interests and obtain substantial support before making an order. Any proposed changes to existing legislation or schemes of management would naturally be part of that establishment process. Local interests would be consulted and there would have to be demonstration of substantial support for the proposed changes. We argue that the noble Lord should be satisfied that there is no need for a separate requirement in this clause for advertisement and consideration of representations regarding proposed changes to existing formal management arrangements on commons. On Amendment No. 191, we have previously discussed that principle in the context of the National Trust, when the noble Baroness, Lady Byford, moved Amendment No. 77A. She was most kind in agreeing to read Hansard carefully before considering whether she was satisfied with the intent of my reasoning on amending or repealing other enactments. I will not repeat what I said then. Amendment or repeal of any of the enactments referred to in this clause would not take place without consideration of the views of local interests. That would occur through the establishment order process that requires the appropriate national authority to have regard to representations and to ensure substantial support for the proposed order. Local interests may wish to take advantage of the powers which can be given to commons associations under the Bill; for example, to upgrade or modernise a management arrangement established under 19th century legislation. We want to ensure that this can be carried out without creating problems of conflict between existing legislation. We therefore believe that we need to retain the power for the Secretary of State for England or the National Assembly for Wales to amend or appeal the enactments listed in the clause. That is all I want to say in reply to the amendments.