My Lords, I wish to speak principally about Amendment 276A, which relates to common land and which I have discussed with the noble Lord, Lord Cameron. The reason for that is that there is a very large amount of common land in the bit of north-west England where I come from, currently known as the county of Cumbria. I should declare that I am president of the Uplands Alliance and I own on my own account a few common rights and a very small area of registered common. I am also a farmer in his late 60s looking into the future.
I begin by reassuring the noble Earl, Lord Devon, that one of the advantages of speaking remotely is that I can, and do, have a copy of Megarry & Wade to hand. I urge your Lordships to take seriously the
points that he has raised, because he is talking not merely as somebody who understands the way land works in the real world but as a property lawyer. His indictment of the implications of what is currently in the Bill is significant. There are massive potential problems here, starting with the definition of “responsible body” and going through the saga of how disaster can strike. It is not merely a matter of disaster hitting the particular owners or successors in title of owners of bits of land; it is potentially a disaster for the countryside and the environment as well. For what it is worth, my advice to the Government would be to tear these proposals up, start again and, if necessary, bring them back in another place and we can vote on them again at a later time after a period of reflection. It is not the aspirations behind what is contained in the Bill which are flawed; it is the mechanisms that they put in place to try to bring them about.
As has already been said, common land is a very complicated legal and administrative matter, as the discussions on the most recent Bill to pass through your Lordships’ House, in 2005, show. In that Bill, a balance was struck between a range of interests which do not always see eye to eye. Common land is as legitimate a form of land tenure as the more usual form found across much of lowland England and Wales. While it was at one time more widespread than it is now, it is still an entirely appropriate basis for farming and land management in a number of upland and lowland, particularly wetland, areas of England and Wales. It is not a hangover from feudal England, although its ancestry lies there, nor is it an anachronism in the 21st century. The various rights which exist under it are in legal terms qualitatively no different from those that exist elsewhere in land law. Furthermore—and this is important—it is a cultural phenomenon which is part of the basis of the rationale for the Lake District National Park having been designated as a world heritage site.
I can see what the noble Lord, Lord Cameron, is trying to do, and I have no criticism of it. However, I feel that he has oversimplified some things in a number of ways. Issues relating to conservation and the environment are not the only part of the story; there are other aspects—for example, grazed habitats; cultural landscape, which I have already mentioned; traditional farming systems; rural communities and so on. Furthermore, one thing we can learn from the history of commons is that the interests of the owner of the soil and those of the owner of the common rights are not necessarily the same. Indeed, the interests of different owners of rights, which are not all the same, are in turn not necessarily the same. I must confess that I am not happy that the owner of the soil could gain a kind of advantage over all the other legitimate legal rights involved in it in the way that has been described, particularly in respect of the long-established rights of commons, as mentioned by the noble Baroness, Lady McIntosh of Pickering. It seems to me that if someone involved in common land wants to buy up some other land or rights or soil, they should do so in the ordinary way in the open market.
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There are also the problems that have been described as pertaining to farming over common land, but an awful lot of them can be dealt with in different ways.
For example, Section 46 of the Commons Act gives Natural England powers in the case of inappropriate agricultural activity, while, in the case of SSSIs, Natural England has legal powers to manage grazing via the consenting process.
As I have said, commons have complicated management systems overseen by commons councils. While all these might seem like parish pump matters to many, they can be very important to some of those directly affected. The 2006 Act, which I have referred to, introduced an overdue degree of stability into the way in which common land is managed across England and Wales. Over the years, these things have been far from straightforward. To introduce a further destabilising aspect of this kind is likely to be undesirable.
Speaking personally, I cannot see why, if we were to go down this route, the owner of the soil should not be capable of being bought out at the behest of one of the rights holders in the way the amendment proposes. After all, that would be even-handed. I certainly do not think all this is likely to be helpful in the real world. I urge the Government to approach the direction of travel proposed by this amendment with the greatest circumspection. I anticipate it would end up causing more harm than good, and the silver tongue of the noble Lord, Lord Cameron, is unlikely to make me change my mind.