Commons Bill [HL]

It will come as no surprise to the Minister that I have considerable reservations about certain provisions in Part 3 of the Bill. I shall, however, address my remarks principally to Amendments Nos. 196 and 198, both of which have been tabled by my noble friend Lady Byford. The provisions in Part 3 go much further than the restricted activities which applied under the Law of Property Act 1925. First, such restrictions applied only to the infringement of the grazing rights that were in operation at that time, whereas the restrictions in this Bill cover all common land. Secondly, such restrictions now apply to access as well as to grazing. I fully accept that any activity on a common which had a genuinely adverse effect on anyone exercising the new rights of access under the CROW Act would be quite unacceptable, but we need to get this into perspective. Clearly fencing would come under this category, or even the erection of a building, but items such as ditching, the construction of ponds or the building of, say, a grouse butt, could hardly, in my view, be construed as impeding access, particularly given the rather large dimensions of the areas of land in question. The key issue is that common land is no different from any other type of land in that it requires careful management. In my part of the world, the production of grouse—I do not like the word ““production”” because we are talking about a wild bird—does not happen simply by accident; it requires careful management. With this comes a whole raft of conservation benefits. It is probably fair to say that it is only now within the areas managed for grouse that we still have sustainable populations of wader birds. Indeed, recent research by Andy Tharme shows that there are five times more waders on moors managed for grouse than on areas that are not. Further research by Dr Stephen Tapper of the Game Conservancy Trust—I declare an interest as president of the trust—in his publication Nature’s Gain showed that there are a staggering 18 times more curlew on managed grouse moors than on areas, say, in mid-Wales—I look across at the noble Lord, Lord Williams—which are now simply managed as nature reserves. In such areas, many waders have now become virtually extinct. In the North Pennines SPA there are some 2,000 pairs of golden plover, whereas in Wales the total number of golden plover is now less than 30 pairs. These figures are quite alarming. Black grouse—a biodiversity action plan species—thrive on areas where there is grouse moor management. The latest report on Dartmoor has shown that the reduction in wader populations there is of a worrying dimension. The principal reason for this has nothing to do with habitat but is due to predation. Various scenarios emerge from this. For example, would the use of a Larsen trap or a crow trap, which are so fundamental in controlling predators, be regarded as impeding public access? Perhaps the Minister can answer that question. One of the more successful methods employed on Dartmoor to try to increase the number of green plover was through the making of scrapes. A scrape is only a gentle indentation on the ground, but I suppose it could be regarded as impeding access. Is that the sort of thing that will be restricted under the Bill? One other example which has just come to mind is the planting of trees. English Nature has planted trees on a number of commons to enhance the look of the area and its biodiversity. Technically, one could argue that the planting of trees could impede access. Will that be caught under the Bill? This comes back to the principal point about management being the key. It is important that the legislation does not unnecessarily impede such activities through the ability of anyone with the right of access to such areas to bring a prosecution against an owner or an occupier for carrying out such minimal but often very important activities. From a farming perspective, it is not unusual on these commons for farmers to put up temporary fences no more than the size of this room in which to corral sheep prior to gathering and sorting out the lambs. Again, will this be regarded as activity which is likely to impede access along and on which prosecutions might eventually be made? Furthermore, as my noble friend Lady Byford has already pointed out, if a landowner and farmer were to be subjected to such draconian constraints and had to apply to the relevant authority, it could be prohibitively expensive which could well jeopardise these important activities. We should also remember that on sites of special scientific interest, managers are already subject to management plans under the CROW Act which is, in some cases, already showing signs of being overbearingly restrictive and somewhat unrealistic. The Government constantly tell us that they are keen to cut red tape and bureaucracy, yet here is another example where further and, in my view, quite unnecessary constraints will be imposed on those expected to carry out important land management activities. We need to quantify on the face of the Bill what constitutes a genuine impediment to access. Therefore, I very much support Amendment No. 196. I should like to say a few words about Amendment No. 198. Under Clause 39, the scope to bring proceedings against anyone who might infringe Clause 36 is widely extended to include those who have rights of access, which, in effect, means anyone. At present, such proceedings could be brought only by a relevant authority and would be unlikely to be invoked unless there was a clear infringement of the rules. In other words, there is some sense of proportion. But given the somewhat strident nature of some—I put it no stronger than that—I fear that if the Bill were to be enacted as drafted, a string of rather frivolous and vexatious cases could be brought before the courts which would be quite unnecessary and disproportionately expensive, as my noble friend said. The fact that such proceedings would be retrospective and could, I believe, go back more than 12 years under the Limitation Act 1980, could exacerbate conflict, which is the one thing we want to try and avoid. The right to roam is now complete. The last thing we want is to encourage bad feeling. At the very least, we should seek to minimise any potential acrimony between land managers and access users. Any retrospective proceedings under this clause should be restricted to the existing authorities. During an earlier Committee sitting—I forget which—we had a very useful debate on whether it would be prudent to re-open the 1965 register to deal with cases of incorrect registration which resulted in over-grazing. In my opinion, the Minister took the right decision. He said that sometimes the circumstances will demand that sleeping dogs are best left to lie, and I very much hope that he will be prepared to accept the same argument in this case. After all, the relevant authorities would still have the power to bring proceedings if appropriate. But let us have a truce so far as others are concerned. Let us start afresh with a clear slate and good intentions. I very much support Amendment No. 198 as well.