Commons Bill [HL]

I am grateful to the noble Baroness for moving her amendment. This is a significant matter, and I shall take a little time to describe the Government’s attitude to it because I believe that what the Government have to say about it now is being listened to beyond this Committee. The powers affected by these amendments, in Clauses 16, 34 and 42, have innocent purposes, which I will try to explain. Orders under Clause 16 arise from the administrative decision of the national authority on an individual application under Clause 15. Any such order would usually contain consequential or supplementary provisions necessary to reflect the specific circumstances of the land subject to the order. We expect that orders for the exchange of land will sometimes be sought for land regulated under a local Act of Parliament—such as, for example, the Nettlebed and District Common Preservation Act 1906. It is impossible to generalise about how such an Act should apply to the replacement land. For example, if the Act provides that only part of the release land may be used for playing cricket, is the whole of the replacement land to be used for cricket, or part of it, or none at all? Clause 16(7)(c) enables the order to make supplementary provision to deal with such matters. We believe it unlikely that we would ever need to make provision in a Clause 16 order for the National Trust Acts, because those Acts do not have effect in relation to particular localities, but set out some general principles which relate to all National Trust land, or all such land of a particular class, such as common land. It is perhaps possible that the trust itself would wish to exclude the application of the trust Acts to replacement land given in exchange—for example, if it did not wish the replacement land to be subject to the controls on works in Section 23 of the 1971 Act, although I feel sure we would wish to look at such a request very carefully. A particular safeguard for the National Trust, in the context of the amendment to Clause 16, is that applications in relation to trust land under Clause 15 must be made by the trust itself, so it is unlikely that an order would be made which was inconsistent with the trust’s objectives, and if one were proposed, the trust could withdraw its application. Under Clause 34, provision is made to amend or repeal local Acts if the national authority thinks it desirable in consequence of functions conferred on a commons association, although that power can be exercised only insofar as any local Act relates to the management or maintenance of common land or the exercise of rights of common. We have in mind that, for example, when a common is managed by a board of conservators under a 19th century order of regulation confirmed by Act of Parliament, the commoners and other interests may prefer to reconstitute themselves as a commons association under Part 2, in order to acquire modern functions and powers. If there was a consensus in favour of proceeding, the Secretary of State would be able to revoke the order establishing the conservators. Again, it is difficult to see how or why provision could need to be made in relation to the National Trust Acts. It is certainly true that the Acts place some fairly limited duties on the Trust to manage its common land in a certain way; for example, commons must be kept unenclosed, the trust must resist encroachments, and it has limited powers to manage and improve the land. Those powers and duties are very similar to those applying to the many open spaces managed by local and national park authorities under the Open Spaces Act 1906, but Clause 34 contains no powers to amend public general Acts of this nature. In the context of the amendment to Clause 34 the trust has, in any event, a particular safeguard. Any provision made under Clause 34 would be made in an establishment order which establishes a commons association under Clause 25. An order under Clause 25 cannot be made unless the Secretary of State is satisfied that there is substantial support for it, having particular regard to the views of key interests in the common, including that of the National Trust in its capacity as an owner, if it were the owner in any particular case, or as a body with statutory functions relating to the management of the land. If the trust had significant objections to the establishment of a commons association in respect of land for which it was responsible, then the Secretary of State may be reluctant to make an order. In practice, we think such opposition be unlikely. The trust’s experience is that 44 per cent of its common land designated as sites of special scientific interest is failing to meet the PSA target, and the establishment of statutory commons associations on such commons can only assist rather than hinder the achievement of target condition. Nor do we think it likely that in an order made under Clause 34 we would wish to make amendments to the National Trust Acts. The Acts set out the constitution and duties of the trust. To amend those Acts would be to interfere with the rights of the landowner. If he will forgive me, it would be little different from my telling the noble Earl, Lord Peel, that we were going to establish a commons association for his moorland commons and, in consequence, he was to give up shooting and turn to shepherding instead. We are not likely to do that. Lastly I turn to Clause 42. This provision enables us to amend local Acts,"““for the purpose of making provision about works on common land””." We expect that these powers may be exercised in order to ensure that the controls on works in any local Acts are rendered consistent with the new regime. That is because there are many such Acts—26,000 since the 18th century alone—and we cannot know what provisions they contain. So Clause 42 enables us to amend local legislation as and when provisions come to light to ensure that local Acts are consistent with Part 3. It is quite true that the powers in Clause 42 apply to the National Trust Acts. Yet with the agreement of the trust we have already made provision in Paragraphs 3 to 4 of Schedule 3 for the amendment of the trust Acts to bring them into line with Part 3. In short, we do not think it remotely probable that the powers in any of these three clauses would be used to alter the trust Acts. I can almost hear noble Lords asking the question: ““Why then do we not accept the amendments?””. The answer is this: the trust in this instance is no different from other bodies which may or may not be affected by these powers. If we are to have a saving for the trust, why not one for the water companies, which are subject to public interest obligations in the management of their estates? Or for Surrey County Council which, like many local authorities, is subject to both national and local legislation in the management of its open spaces. Or, for that matter, for the many estates which are governed by private local or personal Acts of Parliament. Public general Acts of Parliament contain numerous clauses similar to those we are considering today. They are included in recognition of the vast number of local, private and personal Acts and the impossibility of understanding all that they contain. We have been unable to find a single instance in which a public general Act contains a saving excluding the operation of a similar provision for the National Trust. That is because these powers are exercised rarely and cautiously, in consultation with the bodies whose interests are affected and subject to parliamentary scrutiny. We do not believe that the National Trust has anything to fear. I have tried to explain how these provisions are highly unlikely to be applied to the trust Acts, but the proper convention is that these powers should be no less constrained for the trust than for any other body. I hope that I have dealt adequately with the legitimate concerns that have been raised about these amendments. I hope too that the noble Baroness and others interested in the amendments will consider the points we have attempted to make. With that, I ask the noble Baroness to withdraw her amendment.