Commons Bill [Lords]

I understand the hon. Gentleman’s question. Commons councils, as I hope that we will get to call them if Government amendment No. 17 is agreed to, may be given the function of establishing and maintaining boundaries under clause 31(3). If a council is given this function, it will not become liable to maintain fences around the common. The provision will enable commons councils to establish fences where they are needed, providing that consent is obtained. The provision will enable a council to maintain fences where adjacent owners are absent or are creating management difficulties by not keeping fences in good condition. Commons councils will also have powers to do things ancillary to their functions. We would expect a council to be able to bring an action to enforce a custom to fence if necessary. Fundamentally, I believe that there is a distinction between the legislature and the role of the courts. It is the role of the courts to establish whether custom applies in given circumstances. I cannot accept the amendment, but I hope that the hon. Gentleman will receive what I have said as a helpful statement of our view of the law.