Commons Bill [Lords]

As the Minister said, this Bill has already been given the technical scrutiny that we expect of the other place. That is to be welcomed, as is the Bill in general. It is not a matter of great partisanship, as legislation in respect of common land commands wide support in the House. The attitude of hon. Members to the matter of commons and greens will be influenced by their experiences. Traditionally, my own county of Cambridgeshire has relatively small commons, which are generally attached to local communities and usually cover an area of no more than 50 acres. Some of them have been covered by their own Acts of Parliament for many hundreds of years, but the Minister was right to point out that, conversely, commons elsewhere in England and Wales might cover many thousands of acres, with various different owners of the rights to grazing, pannage, turbary or estover. The Minister was also right to say that about 3 per cent. of the land in England, and 8 per cent. of the land in Wales, is common land, covering a little over 500,000 hectares. However, 80 per cent. of land is privately owned, with almost half coming under the sites of special scientific interest designation. The Opposition entirely agree with the Government’s desire further to enhance and protect our common land. The Bill will have far-reaching effects. It is largely about remedying the deficiencies of the Commons Registration Act 1965, which was introduced by a previous Labour Government. However, given that the very first Act in respect of common land was passed in 1235, I doubt that this Bill will be the last word on the matter—especially as the Government, I regret to say, are ducking some of the most serious weaknesses arising from the 1965 Act. We support the improvement of environmental conditions of common land and agree with encouraging sustainable management practice through the introduction of regulatory bodies, but the Government are addressing the problem of over-grazing on common land a bit late. It was the introduction of the single payment scheme last year that reduced farmers’ incentives to increase their herd and flock sizes, and I hope that commons associations, Natural England, the Countryside Council for Wales and others do not have the problem of trying to deal with under-grazing, to which the Minister referred, as well as the over-grazing that has been a problem in the past. In principle, we agree that greater collective action is a welcome move towards achieving improved environmental and agricultural management. The Minister touched on the fact that the success of the Dartmoor commoners council is testimony to that. The first part of the Bill deals with the registration of common land and with town and village greens. According to the explanatory notes:"““This replaces and improves the registration system under the 1965 Act, but using the same registers prepared under that Act.””" We are concerned that there are known to be many deficiencies in the existing registers, which the Bill does not provide an opportunity to remedy. They particularly relate to the number of registered rights, which the Bill does nothing to tackle. There are numerous examples: for example, grazing rights may have been claimed that were significantly in excess of those traditionally attached to the land through the old system of levancy and couchancy. It would be absurd not to understand the Government’s reluctance to enter into what we all know to be a minefield, and I understand that there are also human rights concerns. However, I suggest that where there are obvious cases of deception, there cannot be any fair claim on human rights grounds. For example, I know of a common in my constituency where rights were claimed and registered by a person whose property had never previously had any such rights. If the Bill is to prove durable, it should enable people sensitively and sensibly to challenge previous rights. The Bill prohibits severance of the rights of common, with the exceptions applying to commons associations, Natural England and CCW. I wholly support the principle of ending severance, but I question the logic of severed land being handed to Natural England and the others. While the intention may be that they do not use the rights, thereby dealing with over-grazing, there is nevertheless nothing in the Bill to stop them using them, perhaps becoming grazers themselves, or possibly cutting peat, catching fish or harvesting bracken. That could mean all those bodies having more rights over common land than are currently held by established voluntary commons and statutory commons associations. I heard what the Minister said about the Dartmoor commoners council and the amendments that will be proposed. I have had discussions with the council over its concerns. Perhaps the Minister will tell us whether the Bill will result in a fair situation for the Dartmoor commoners council. In particular, will it let the council continue to hold the rights of registration, creation and severance that it holds under the present legislation? Other commons associations also deliver benefits for people on lands that are well managed for agricultural, environmental and public benefits, and I hope that they, too, can be dealt with under the amendments. There is also a question why Natural England and the other organisations should need the rights that come from severance. If associations are to be responsible for ensuring that commons are not over-grazed or in other ways exploited, it should surely be to those associations that the severed rights are granted. Alternatively, they could revert to the owner of the dominant tenement. Clause 13 deals with surrender and extinguishment and correctly ends the practice of common law extinguishing rights, but in doing so disposes of certain circumstances where extinguishment might be desirable. For example, rights in gross created by severance at some previous time in history that may have been abandoned, especially after passing through a few generations, would be an ideal way of reducing the total number of over-grazing rights. However, that opportunity would be lost under the Bill. It seems contradictory to use human rights as an excuse for not removing rights that were either fraudulently obtained or have been abandoned, while clause 15 of the same Bill would confiscate land from a private owner by allowing it to be registered as a green and, in effect, to become worthless. Where are the human rights in that example? The Minister and the hon. Member for High Peak (Tom Levitt), who has left the Chamber, said that the provisions largely repeat those in existing legislation, notably the 1965 Act, but there are serious concerns that for land claiming village green status they have become increasingly relaxed. Opponents to new developments can argue that land should be registered as a village green if they can prove that local inhabitants have indulged in so-called lawful sports and pastimes for at least 20 years. I have great regard for the Minister, but he may not have taken on board the seriousness with which that issue is viewed not only by his hon. Friend but in several parts of the country. As long ago as 18 January, on Third Reading in another place, my noble Friend Lady Byford referred to case studies where the 20-year use rule—for example, simply for walking dogs—had been employed by activists opposed to housing proposals to enforce the registration as a village green of land that few reasonable people would consider as such. Lord Bach responded:"““I agree with everything that the noble Baroness has just said. Perhaps I may say to the noble Baroness, Lady Byford, that we will study the details of her remarks and that I shall write to her.””—[Official Report, House of Lords, 18 January 2006; Vol. 677, c. 686.]" I understand that no response has yet been received by Lady Byford. Perhaps tonight the Minister will take the opportunity to elaborate on behalf of his noble Friend. It seems that such housing developments are not isolated cases. My hon. Friend the Member for North Shropshire (Mr. Paterson) is dealing with a similar case in his constituency where a small number of local individuals opposed to the development of a health village on reclamation land proved that they had used the land for lawful pastimes for 20 years, thus qualifying it to be registered as a town green. Fortunately, the court ruled against the application for registration and building work restarted, but there is concern that the Bill could allow the case to be reopened, which would further delay the building of that much-needed community facility. Will the Government consider how to address that issue? Can the Minister tell us whether the Department has made any assessment of the amount of land eligible under the 20-year rule? In addition to that, the creation and registration of rights will apply only to those commons registered under the 1965 Act, through Natural England and the CCW. To gain such rights, commons associations set up outside that Act and voluntary commons associations will be required to register under the Bill, which will be a time-consuming and costly process. Will the Minister tell the House how many commons associations outside the Act there are, and will he assure us that the advantages of registering outweigh the monetary cost of registration and the administrative burden that will fall on those associations? Would not it be more suitable to allow existing voluntary commons associations to remain operating as they are, while becoming part of a larger statutory organisation? Such an umbrella structure could provide democratic discussion and ruling at local level, with a more central administrative control. Moreover, it would create a better national framework for sharing information and promoting good advice. Have the Government considered a point of contact in DEFRA or another part of the Government so that the various commons associations have a central database? I do not mean a literal database, but somebody with the knowledge to provide advice and co-ordination, and develop expertise within the Department and deliver it to all the commons associations. There seems to be general agreement that the 1965 Act has not been entirely successful. I wonder whether the Minister can tell the House exactly how many commons and green are still in dispute. Do we know what are the chief disputes? On the Government’s plans to establish electronic registers, I welcome the Minister’s commitment to provide funding. I hope that another Department’s funding is not cut accordingly, which is, of course, what usually happens on such occasions. Nevertheless, I am somewhat concerned about the establishment of an electronic register, given the Department’s track record. We only have to go back a few years to the cattle tracing scheme that was introduced following the 2001 outbreak of foot and mouth disease or the mapping exercise following the CROW Act—the Countryside and Rights of Way Act 2000—to find that problems surround such schemes. Of course, none of us needs reminding of the current debacle at the Rural Payments Agency. So I hope that the Minister can tell the House how much the proposed commons register will cost to establish and maintain. Will he assure us that the scheme will be more successful than the Department’s previous computer projects? In England, the commons registration authorities are largely county councils, with some district councils and unitary authorities. Do the Government know whether councils and authorities have adequate staff, with the necessary qualifications and experience; or will recruitment and training be required? That issue is one not just of funding, but of having competent staff. The objective of part 2 is to enable the appropriate national authority to establish commons associations, thus enabling commoners to work together to manage agricultural activities and vegetation on a voluntary basis. The Bill will allow commons associations to enter into agri-environmental schemes, which, of course, we welcome. However, it is essential that such associations truly represent those with interests in the common. I listened with interest to the exchanges on the matter that the Minister had with Members on both sides of the House. It is important that such organisations are formed not just of a small group of people who can create an association to exercise power over others, possibly to their detriment. I hope that the Minister can tell the House a little more about the composition of associations and particularly whether a minimum level of support will be needed to establish a commons association. Moreover, what will be the relationship between such commons associations and those who may have leased other rights from the landowner? The Minister made the perfectly proper point that most commons are privately owned. The owner may well have leased other rights, such as sporting rights, to third parties. What will be the relationship between the holders of such rights and a commons association? Obviously, the association’s role may well impinge on the holder of sporting rights and, of course, vice versa. Part 3, which deals with protection of commons from unlawful works, is entirely welcome, as the Minister implied. Of course, such works can include building or the erection of fences on common land. Of course in many areas, such as my constituency, they can involve the incursion of unlawful Traveller encampments. So measures to protect common land from such works and to speed the process are, of course, welcome, but I am concerned about whether the minimum additional regulatory burden will be placed on the commoners who want to achieve that aim. The Minister said that the Government plan to introduce exemptions from the necessary consent process, but I should be grateful if the Minister gave us a little more information. In particular, what will happen if the owner of rights wishes to erect temporary fencing, perhaps to reintroduce grazing on a common or to keep stock out of an especially sensitive part of a common? Open commons with roads going through them—I have examples in my constituency—were fine when there was a small amount of fairly slow-moving traffic, but there is a problem given the increasing amount of traffic nowadays. People can stand on some of our commons and watch cars and motor bikes going through at 50 mph plus—perhaps they should not travel at that speed, but they do—and many people will not risk either their stock or the likelihood of a legal case by allowing their stock to cross open roads. Fencing is becoming more and more important. I hope that the Government will consider either an exemption or some sort of fast-tracking of inconsequential works so that only the more significant proposals have to go through the full process. Finally, I am concerned that, yet again, in the Bill Ministers are taking immense powers to repeal other legislation—in this case, under clauses 36 and 44. In particular, the National Trust has raised the issue that its own Acts could be repealed or amended by virtue of a Minister giving commons associations powers that supersede those of the National Trust. I know that the Minister is aware of that important issue and I hope that he will reconsider it in Committee. As I have said, and as I am sure will come through in the debate, there is clearly broad support for the Bill. The Conservatives strongly support it, but there is scope for improvement. Like the Minister, I pay tribute to the immense work done in the other place, but there are still a few things to resolve and there is still some clarity to be achieved. My experience of the Minister who will take the Bill through Committee is that he is open to good suggestions and sensible ideas and I look forward to that consideration and to making improvements to some of the areas that I have touched on. I welcome the Bill. It is a sensible measure that brings commons legislation up to date and improves some of the shortcomings of the previous legislation. I regret that it does not improve all of them, but we will seek to amend it in Committee.