Commons Bill [Lords]

Several speakers have referred to consensus across the House. There is indeed a large degree of consensus—so much so that sometimes it is almost disturbing. However, like the hon. Member for Stroud (Mr. Drew) who spoke very well, I shall break the consensus slightly, although only to note that after 41 years we should be allowed a reasonable time to discuss the amendments. When the Minister for Climate Change and the Environment introduced the Bill—reasonably and properly, as one would expect of him—he concluded that there would be many amendments to discuss in Committee. Despite the large consensus on much of the Bill—100 per cent. on the need for a change in the law—I can see no justification for concluding its proceedings by next Thursday. I say that with complete sincerity, because although there was consensus in the other place, their lordships were given a considerable amount of time to discuss this important Bill. As was said earlier, there are more than 550 hectares of common land in England and Wales whose importance, pro rata, to the agricultural community is greater in Wales and in the north and west of England than in the south-east where much land has fallen out of agricultural use. The hon. Member for Hexham (Mr. Atkinson) mentioned rights of turbary. Those are not ancient rights that have fallen off the scale. I have neighbours who exercise rights of turbary on the mountain behind the village where I live. Another neighbour has piscary rights at a mountain lake in my community—[Interruption.] I am pleased that the hon. Member for Stroud smiles at that. Such rights still exist, and it is important to give them as much consideration as biodiversity, to which the hon. Member for Bridgend (Mrs. Moon) referred. There is no doubt that that is important but many other interests need to be catered for under the Bill. It was said earlier that there was consensus that the 1965 Act was not as good as it might have been, and indeed that it was flawed from the beginning. It was certainly a cumbersome piece of legislation, which was often bewildering to the agricultural community and lawyers alike. On behalf of farmers in north and mid-Wales, I appeared many times before Her Majesty’s commons commissioners and it was felt overwhelmingly that the procedure was unnecessarily complicated, even when rights or ownership registrations were uncontested. In contested hearings the proceedings could, and in my experience did, last for a week or longer, so the procedure was very expensive indeed. In that regard, the Act certainly was flawed from the beginning. Even worse, when mistakes were made, wrong registrations were usually rectified by an application to the High Court. That, too, meant huge delays, uncertainty and further worries about costs. I know of individuals who found those considerations so off-putting that they did not proceed with their applications. I hope that will be put right under the Bill. One example involves an enclosed piece of common land fairly high up the mountain in Merionethshire. The land has always been enclosed and used by one farm alone. No one else has used the rights, but unfortunately two other people have registered rights to graze. They cannot use the rights, because they cannot get to the land—that would involve crossing the dominant tenement in any event—but if that ground is sold, there will be huge complication. Any means of rectifying such problems has been beyond people locally, and I had hoped that the Bill would assist in that regard, but I do not think that it does. If I am fortunate—or perhaps unfortunate—enough to be selected to serve on the Standing Committee, I shall develop the argument slightly and address it with the Minister in Committee. On my reading of clause 19, it appears that the process for amending mistaken entries is far simpler and less expensive—of course, I welcome that—but, unfortunately, I do not think that previously incorrect registrations under the 1965 Act will be capable of review under the Bill. If I am wrong, I will gladly stand corrected. I am led to believe that that is the case because of some human rights concerns, but one must consider the human rights of those against whom adverse and incorrect registrations have been made. I hope that we can discuss that point further in due course. If there is no means of addressing patently wrong registrations, the Bill would appear to be a lost opportunity, because that aspect is probably the greatest and most obvious shortcoming of the 1965 Act. In large part, that was responsible for over-grazing for many years. The Country Land and Business Association points out in its helpful briefing what happens if:"““where registered rights have been overstated. This unfairness has been accentuated by the recent CAP reform and the allocation of SPS entitlements to graziers based on their registered rights with the prospects that landowners, who may also be active graziers, possibly being excluded from any entitlement where there are more rights registered than a common can physically support.””" At this juncture, it would be as well to remind ourselves of the vital nature of grazing rights to agriculture. Very often, common land borders on a farm’s ffridd or in-bye land and forms an integral part of the whole farming enterprise. As the hon. Member for Brecon and Radnorshire (Mr. Williams) said, many farms would not be viable without such rights. Many upland sheep farms in Wales simply would not exist without such rights on common land. Therefore this is not an esoteric subject, of peripheral interest to the agricultural community. It is vital to that community, so it is also vital to people in the locality who use commons recreationally, and to biodiversity. There are many aspects to the Bill, and it does a reasonable job in addressing some of those balancing acts; but as this is a Second Reading debate, I shall merely comment on three or four ways in which the Bill should be improved. I note that during the Bill’s passage through the other place, there were some interesting and highly informed debates that culminated in several useful amendments to the Bill. The first issue that I should like to flag up—I shall not do so at great length because this has been referred to already—is the severance of grazing rights from the farms and holding to which they are attached. That came about as an unintended consequence of a decision in a leading case. Under the 1965 Act, commoners seeking to register rights had to quantify the number of animals that they were entitled to graze. As the hon. Member for Ludlow (Mr. Dunne) said, figures such as 70.3 cattle—whatever that means—have been used. In due course, those rights could be severed from the land itself. I agree about the explanatory notes. They are refreshingly good, and very useful indeed; whoever is responsible, perhaps the whole team, can take all the credit for them. They refer to the leading case of Bettison v. Langton in 2001, in Appeal Cases 27. In effect, the House of Lords determined that as a consequence of the quantification required by the 1965 Act, the commoner was able to dispose of rights of common independently from the land to which they were attached—or, incidentally, to sell the land and retain the rights, which has also happened frequently. That is what is meant by severance, and it damages the whole framework to allow grazing rights to be transferred to someone who might have no contact whatever with the area, and who might even have no desire to co-operate with the other commoners in preserving the common good of the land, the environment and its use. The general prohibition on severance in clause 9 is therefore welcome. However, that was amended in the other place, and the inclusion of an authorised severance was secured, whereby statutory commons associations can acquire rights by severance and their consent would be required for any transfer of severed rights to Natural England or the Countryside Council for Wales. That is appropriate, because no one wants to see over-grazing—but as the hon. Member for Bridgend said, no one wants to see under-grazing either, as it is equally damaging to the flora and fauna, and the environment generally. A proper balance has been achieved. Under paragraph 3 of schedule 1, it will be possible by ministerial order or by order of the National Assembly for Wales to suspend the general prohibition on severance—in particular, where local circumstances dictate and there is strong local support and a good case for doing so. That may not be used very often, but it introduces some welcome flexibility into the equation.