Commons Bill [Lords]

Public Bill Committee, 25 April 2006.

Standing Committee D

Jim Knight (Labour, South Dorset)

I beg to move,

That—

(1)during proceedings on the Commons Bill [Lords] the Standing Committeeshall (in addition to its first meeting on Tuesday 25th April at 10.30a.m.) meeton—

(a) Tuesday25th April at 4.00p.m.;

(b) Thursday27th April at 9.00 a.m. and 1.00p.m.;

(2) theproceedings on the Bill shall (so far as not previously concluded) bebrought to a conclusion at 4.00 p.m. on Thursday 27thApril.

It is a greatpleasure to serve for the first time under your chairmanship, MissBegg. It is perhaps a sad reality of devolution that no ScottishMembers of Parliament are members of the Committee, so it is a joy thattwo Scottish MPs will be in the Chair using their wisdom to look afterus. We are all looking forward to that and to our forthcomingproceedings in which the various stars of the debate on Second Readingwill be brought together. The programme motion is straightforward inrespect of the timing of the four sittings of theCommittee.

James Paice (Conservative, South East Cambridgeshire)

May I addmy welcome to you, Miss Begg? In light of the Minister’sreference to both Chairmen being Scots, I am sure that we shall havecomplete impartiality from the Chair—even more than we wouldhave done—as the Bill is solely to do with commons in Englandand Wales. The hon. Gentleman referred to the stars of the debate onSecond Reading. It was not the longest debate in the history of debatesin the House of Commons; nevertheless the Bill involves many issues.Although it will not grab partisan headlines, a lot of matters willaffect many ordinary people, farmers and others throughout thecountry.

I confessthat, during my preparation for the Bill, I was surprised how manydifferent issues arose. I have many matters on which to challenge theMinister and I know from working with him on previous Bills—Ican say “with” not “against”—that heis always open to constructive proposals. I am sure that we are lookingforward to his constructive responses. Several wrinkles need to beironed out. Questions need to be asked and, in some cases, changes needto be made despite the excellent work of the House of Lords in itsconsideration of the Bill. However, unusually, it did not get the Billentirely right so I am happy to support the programmemotion.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I alsowelcome you to our proceedings, Miss Begg, and look forward to servingunder your chairmanship.As the hon. Member for South-EastCambridgeshire (Mr. Paice) said, when preparing for our proceedings inCommittee we received several representations and a number of issuesmust be teased out. We might not have the opportunity for another 40years to deal with common land. It is therefore our duty to give theBill full scrutiny and attention so that we can put it in a form thatwill serve the interests of not only landowners and rights holders, butthe public who regard commons as an important national resource fortheir recreation, nature conservation and other conservation issues. Asalways, I look forward to the Minister’s constructivecontributions to the debates and his responses to our amendments. Therepresentations that we shall put forward will not necessarily betechnical, but they come from people who have experience of managingcommon land and exercising theirrights.

Anne Begg (Labour, Aberdeen South)

I remind the Committee that there is a moneyresolution in connection with the Bill, copies of which are availablein the room. Adequate notice should be given of amendments. As ageneral rule, I and my fellow Chairman do not intend to call starredamendments, including any that might be reached during an afternoonsitting of theCommittee.

Clause1

Jim Knight (Labour, South Dorset)

The clause requires commons registrationauthorities, generally county councils and unitary councils, tocontinue to keep the registers of common land and town or villagegreens that were established under the Commons Registration Act 1965.It is not a new duty on local authorities; the clause simply preservesthe responsibility that they already have under existinglegislation.

Clause2

Jim Knight (Labour, South Dorset)

We think that it is helpful if the Bill clearlysets out the purposes to be achieved by the registers held andmaintained by commons registration authorities. Subsection (1)explains:

“Thepurpose of the register of common land is...to register land ascommon land; and...rights of commonexercisable”

over suchland. Subsection (2) applies the same principles in relation to theregister of town or village greens.

Clause3

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I beg to move amendment No. 94, in page 2, line15, leave out subsection(5).

It is a pleasureto move the first amendment. The clause says, “Regulationsmay”. Throughout the Bill, there are many issues relating tocommons that would be subject to regulation. The Minister said jokinglyon one occasion that there will be enough statutory instruments inrelation to the Bill to see us through our parliamentary careers.Looking around the room, in terms of longevity, perhaps my hon. Friendthe Member for North Cornwall (Mr. Rogerson) has more chance of seeinganother Bill relating to commons than most of us. That being the case,we are concerned that the form of the regulation is not obviouslyclear.

Any regulationthat allows information to be put on a register raises data protectionand human rights issues. We are concerned about the nature of theinformation that may be put on the register. I understand that theDepartment for Environment, Food and Rural Affairs Bill team, in itsguidance document on identifying the ownership of rights of common,said that if not only the dominant tenement was included, but therights pertaining to it and the holder of those rights, that might leadto confusion about who holds the rights, because they refer to thedominant tenement, not a person. The only way to establish who owns thedominant tenement is to refer to the land register. If there were to bea problem in resolving an entry in the commons register and an entry inthe Land Registry, there might be some difficulty in agreeing who wasthe holder of therights.

Having saidthat, I have already had my hand slapped by Mrs. Griffiths, the commonsregistration officer for Powys county council, who says that thecommons registry officers for Powys and the Marches insist that theclause is included in the Bill, and she tells me that she has puttremendous effort and activity into ensuring that that takes place. Herargument for doing so is that it has been helpful to farmers whoexercise rights of common, when claiming subsidies through theintegrated administration and control scheme, and now through thesingle farm payment, because they have been able to prove that theyhave rights overthe common by getting copies of the registerin which Mrs. Griffiths has included the individuals who own therights.

I understandthat Powys county council has been reprimanded by DEFRA for taking thiscourse of action, so we are in quite a difficult position. I shall readbriefly a letter from Mrs.Griffiths:

“Currently,the Rights section of the register shows the name of the originalapplicant for registration (1967-70) against the details of grazing fora particular farm holding. If a farm with grazing rights is sold inlots then application can be made to apportion the grazing rightsbetween the various parties on a pro rata basis according to acreage.We then amend the register and cross out the original 1960s entry andinsert two or more new entries.

If the farm is transferred, as awhole, to the next generation on the death of the original applicant oris sold in its entirety to a new owner, there is no requirement underthe 1965 Act to amend the register. It is legally correct to show thename of a person who died or moved away 30-plus years ago and this isone of the reasons why the register needsupdating.”

Shegives an example from the area that she administers of the importanceof entering the names of rightsholders:

“When...Llanbedrand Llandeilo hill (Ireland moor) went into the ESA, Maureen Lloyd, thecommoners’ association secretary, had to ensure that theregister was amended to show all the current commoners’ nameswere in the register or else they wouldn’t receive payments foragreeing to reduce the number of animals grazing on thecommon.”

Is itthe Minister’s intention that as a result of clause 3, commonsregistration authorities will include the names of the holders ofcommon rights? If so, that goes against the advice of the Bill team,which is a problem. We are concerned that the register, a publicdocument, might contain unnecessary information or information thatrights holders do not want to be there.

Subsection (5) says thatregulations may

“requireor permit other information to be included in aregister”.

We do not havea problem with “permit”, but we do with“require”. The provision is so open-ended that it wouldallow the publication of lots of quiteimproper andunnecessary information—perhaps even information that goesagainst the nature of the legislation. Will the Minister respondpositively, indicating how he envisages that the regulation will actand what will be init?

Jim Knight (Labour, South Dorset)

I would be pleased if the hon. Gentleman passed onmy best wishes to Mrs. Griffiths of Powys council, who clearly showswisdom. We will return to the registration of ownership of rights whenwe discuss clause 8 and the interesting issue of apportionment, so Ishall not dwell on it unduly.

The register’s coreelements are the land register and the rights register. The landregister contains a conclusive record of the extent of common land andgreens, and the rights register contains a conclusive record of thenature and quantification of rights exercisable over the land to whichthey are attached.

The power in subsection (5) isintended to amplify what can or must be shown in the register. Forexample, we expect to provide that the registers may continue to showall the additional information—information about mineral rightsand public rights of access, for example—that the 1965 Actpermitted them to show. That the register should continue to show thatinformation does not raise any new data registration or human rightsissues.

We have alsoproposed that commoners should be able to enter in the register adeclaration of their entitlement to exercise rights of common when theyown the land to which such rights are attached. I think that thatanswers the hon. Gentleman’s question—they would be ableto register those rights, but would not necessarily have to. We willreturn to that when we discuss apportionment. It is not realistic torequire people to register those rights, because in the real world itwould be difficult to make them do so. The measures will improve the availability of information about who isentitled to exercise the rights over a particular common. The provisionof such information will be for assistance only, as the informationwill not beconclusive.

Theregulation-making power in subsection (5) is an essential tool forobtaining the information that must be shown in registers undersubsections (1) to (4). The Government will consult on draft proposalsfor regulations under subsection (5), so some of these issues, whichthe hon. Gentleman has rightly raised, will be subject to debate underthose order-making powers and as those orders go through. However, wewill consult, as part of our commitment to consult, on the detailedimplementation of part 1 generally.

In respect ofthe hon. Gentleman’s question as to why we should“require” rather than “permit”, it must bepossible for regulations to require certain additional information tobe included in the register, rather than leave it to theauthorities’ discretion, for example, declarations ofentitlements to rights to which I have just referred. I hope on thatbasis, that the hon. Gentleman will withdraw hisamendment.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I listened very carefully to the points that theMinister made. We may refer to the matter again later in Committee. Onthat basis I beg to ask leave to withdraw the amendment.

Jim Knight (Labour, South Dorset)

The clause ensures continuity between theregisters prepared under the Commons Registration Act 1965 and thoserequired to be kept under this Bill. It provides that registrationauthorities may roll forward the existing registers and they willbecome the registers held under the Commons Act.

The clause provides clarityabout what can be included in the registers. It provides for the registers to include information about the extent of common land and town or village greens and rights of common and the attachment of suchrights to land, such as farm holding. It also provides for regulationsto amplify those requirements, as we have just debated.

Clause4

Dan Rogerson (Liberal Democrat, North Cornwall)

I beg to moveamendment No. 95, in page 2, line 37, at endinsert—

‘(4) By agreement alocal authority may delegate its responsibility as a commonsregistration authority to another commons registrationauthority.'.

I addmy best wishes and I am delighted to be serving under yourchairmanship, Miss Begg. The amendment tabled by my hon. Friends the Members for Eastleigh (Chris Huhne) andfor Brecon and Radnorshire (Mr. Williams) and myself seeks to add alittle flexibility with regard to how commons registration authoritiesmay co-operate with each other in the exercising of their functionsunder the Bill. I, in my quick year as a Member of the House, have seena number of powers passed on to local authorities in all sorts ofareas. I am well aware, through talking to colleagues that are membersof those local authorities and indeed to officers, of the vast range offunctions that they are required to carryout.

Inevitably, somelocal authorities, acting as commons registrations authorities, willhave an area of specialism in such matters because they are responsiblefor large areas. I fear that I may refer to Bodmin moor a few timesduring our proceedings. Cornwall, my own commons registrationauthority, has large areas of common land and therefore has officesdedicated to dealing with it. However, I am sure that smaller or indeedurban local authorities have far fewer commons within their boundariesand therefore may not be able to devote resources to having specificofficer expertise to deal with commonsregistration.

The hopeis that if the Minister accepts the amendment, the commons registrationauthorities will co-operate. Those with more specialism could offer tosupport those that have less. Presumably, there would need to be someagreement on resources on that, should that be a problem. It wouldensure that landowners and people who have rights over common land, inwhichever authority the commons are based, would be able to haverecourse to specialist officers with the time and resources to resolveany issues that may need to be resolved. That would allow a sensiblepooling of resources and expertise so that all commons, their users andthe homes on them, will benefit from the advice and support ofspecialists.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

It is a greatpleasure to serve under your chairmanship, Miss Begg. I support theamendment, as it is logical and sensible. In effect, it is a slightextension of subsection (3). The hon. Member for North Cornwall madehis points well.

Wales has 22 districtauthorities. Some have only the tiniest of commons; others, such asGwynedd, Brecon and Radnor and Powys, have huge swathes of common land.It would be sensible to introduce flexibility into the Bill.

It was mentioned on SecondReading that in times gone by, land rights were the Cinderella serviceof local government. Very often, one or at most two people manned anoffice responsible for important rights such as grazing, ownership andso on. I am sure that we all want a system that will guarantee freeaccess to adequate and accurate information for members of the publicand registered owners of land and rights. For that reason, amendmentNo. 95 issensible.

The Ministerresponded helpfully to questions about additional funding for properoperation of the duties. That is obviously a key point, but someauthorities are already far more proficient at those services thanothers. I return to the Welsh example of 22 district councils. Do theGovernment honestly foresee 22 different registration authorities, or will there be sensibledelegation, which is eminently reasonable? For that reason, I fullysupport theamendment.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I support my hon. Friend the Member for NorthCornwall as well. On Second Reading, many hon. Members made the pointthat they were pleased that the duties of the commons registrationauthority would remain with local government, and I support that. Partof the purpose of the amendment is to ensure that if a power is givento a local authority to use another organisation to carry out itsfunctions as a commons registration authority, that organisation wouldbe another commons registration authority, not an agency.

To help the Minister a littlebit, I can say that such informal arrangements are already carried outin Wales. The Swansea unitary authority and the Neath Port Talbotunitary authority share a commons registration officer. The Blackmountains in Powys are a series of contiguous commons for which thePowys commons registration officer also holds the registerforthe Herefordshire part. It is a transnational arrangement, not just across-authority arrangement.

Such arrangements happen inpractice. It would be good to put them into the Bill so that thatsolution would be available to local authorities. They could then makethe best use of the expertise available and give confidence to commonsowners, rights holders and the public that a good service is in placefor theiruse.

Jim Knight (Labour, South Dorset)

I am grateful for amendment No. 95, and I amgrateful to the hon. Member for North Cornwall for acknowledging themany powers that have been passed down to local authorities in theexcellent spirit of delegation to local government that this Governmentbelieve in.

I alsoagree with the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) thatthe amendment is, in many ways, logical and sensible. Indeed, it is soperfectly reasonable that it is already the law, generally, relating tothe undertaking of local authority functions. Section 101 of the LocalGovernment Act 1972provides:

“a localauthority may arrange for the discharge of any of theirfunctions...by a committee, a sub committee or an officer of theauthority; or...by any other localauthority.”

As thingsstand, Mrs. Griffiths will continue to be able to act as the commonsregistration officer for Herefordshire, even though she is the officerfor Powys. In general, the purpose of the amendment is already a matterof law, which is why I resistit.

I have announcedfunding and support for an association to represent commonsregistration officers in England and Wales, so that they can exchangetheir expertise and improve it. Subsection (3) provides flexibility toenable one commons registration authority to assume full responsibilityfor an area of common land that straddles the border between twoauthorities’ areas. On that basis, I hope that the hon.Gentleman will ask leave to withdraw the amendment.

David Drew (Labour, Stroud)

Will my hon. Friendexplain what the default position is? If a registration authority isnot doing the job properly, what happens to an area that wishes to come out of that agreement?Presumably, a contract can be broken and a new one can be enteredinto.

Jim Knight (Labour, South Dorset)

It is up to the local authority to make thedecision as to how it would delegate its functions within theauthority, or whether to delegate to another authority. Equally, it hasthe power to terminate the agreement at any time. I hope that thathelps my hon.Friend.

I hope that,on the basis of this useful debate, the hon. Member for North Cornwallwill ask leave to withdraw hisamendment.

Dan Rogerson (Liberal Democrat, North Cornwall)

I am grateful for the Minister’s kindwords on the spirit of the amendment. I acknowledge that the Governmenthave passed many responsibilities to local government, but whether theyhave passed with them the money to act on them is another matter. Nonethe less, I am grateful to the Minister for considering the amendmentin detail. I am pleased to hear that under the Bill, should it passinto law, local authorities and commons registration authorities willstill be able to co-operate and work together effectively and come upwith whatever agency agreement they feel to be appropriate. On thatbasis, I beg to ask leave to withdraw theamendment.

Jim Knight (Labour, South Dorset)

The clause maintains the existing arrangements forcommons registration authorities. We believe that these functionsremain best undertaken at the county level in two-tier local governmentareas.

Clause5

Jim Knight (Labour, South Dorset)

The clause applies part 1 of the Bill to land inEngland and Wales, with exceptions made for the New Forest, EppingForest, the Forest of Dean and land exempted from registration by orderunder section 11 of the Commons Registration Act 1965, listed in anannexe in the explanatory notes, including Victoria gardens in Portlandin my constituency. The excepted areas set out in the clause areidentical to those excluded from the operation of the 1965Act.

Clause6

Jim Knight (Labour, South Dorset)

This is the first of several clauses dealing withthe registration of dispositions affecting rights of common. Theseprovisions would require the registration of any disposition for it tobe effective in law. The clause sets out to ensure that the grant of anew right of common will not be effective until it has been registeredon application to the commons registration authority. It is essentialto regulate the grant of new rights in that way to ensure that theregisters are comprehensive of all rights of common exercisable overthe land and that no claim can be made to latent prescriptive rightsthat subsist over the land but have yet to be registered.

The clause makes it impossibleto create a right by prescription or to create a new right that is notattached to land. Abolition of the acquisition of rights of common byprescription ensures that there is certainty as to whether land issubject to rights ofcommon.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

Although we welcome the clause, subsection (6)gives a duty to a local authority to make a judgment and that judgmentwill be about whether it is possible to exercise or sustain theexercise of that rightor

“if the land isalready registered as common land, any other rights of commonregistered as exercisable over theland.”

We are worriedabout how the commons registration authority will reach a conclusion onthe matter. Whether a common is appropriately grazed, over-grazed orunder-grazed is often a contentious issue, and there will be as manydifferent opinions as there are people. I know that the Bill sets outlater that an appropriate national authority may appoint people tocarry out the exercise on behalf of the commons registration authority.However, we are concerned about the loss of the commons commissionersas set out in the debate on SecondReading.

In the otherplace, amendments were tabled on inspectors and other ways ofaddressing such issues, but we want to flag matters up at this stagebecause it is an onerous burden for local authority officers, electedmembers, ad hoc tribunals or whatever to have to make such judgments.We want to put in place a much more appropriate system for making thesedecisions.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I have just one question for the Minister. We aretalking about the creation of rights. In our debate on Second Reading,we referred to estovers, pannage and piscary. One thing that worries meis that the notes on clauses make no reference to turbary. I did notsay that to raise a laugh in Committee. It is an important right forpeople in my area. They still dig peat and use it for domesticpurposes. Will the Minister confirm that that was just an oversight andsay that there is no intention to extinguish the registration of suchrights, which are still important in many uplandareas?

Jim Knight (Labour, South Dorset)

I will reflect on turbary rights, while I respondto the point made by the hon. Member for Brecon and Radnorshire. Thelocal authority, acting as the commons registration authority, willperform its duties in a quasi-judicial form, much as it does in respect of planning. From my experience of chairing a planning committeeon a local authority, I recall that issues were often controversialwith views held strongly on both sides. I have no reason to doubt thatthat was anything but thenorm.

Localauthorities are in a good position to perform such duties as long asthey are performed subject to advice. In the same way, when theyperform their duties as a planning authority, they carry out thosefunctions with advice. We have made it possible for those authoritiesto take advice on technical issues under part 1, and we amended theBill in another place to introduce a power to require it to consultunder clause 24(2)(h).

I hope that, on that basis, thehon. Gentleman is reassured that we consider local authoritiesperfectly able to perform that function. If the issue is sufficientlytechnical that they do not feel that they have the expertise, despitethe investment in expertise that the Government are making, they canrefer it to the panel. We will discuss that later when we discuss thewisdom or otherwise of replacing commons commissioners under thearrangements set out.

For those who need anexplanation, turbary is defined in annex A of the explanatory notes. Ifthat is not adequate, I can write to the hon. Member for MeirionnyddNant Conwy (Mr. Llwyd) but he is indicating that he is happy with it. Ihope that the Committee will support clause6.

Clause7

Jim Knight (Labour, South Dorset)

The clause has the same broad purpose as clause 6.It requires the registration of any variation in a right of common. Ifthe variation is not registered, it will not be effective in law. Theclause will ensure that registers are comprehensive on the nature andextent of any rights to thecommon.

Clause8

James Paice (Conservative, South East Cambridgeshire)

I will let the Minister catch up with himself. Hewas making excellentprogress.

The issuethat I wanted to address during the debate on clause 8—it alsoimpinges on clause 9, but I shall not raise it again—is what hassometimes been called local severance, which is linked to the questionof apportionment in clause 8. Paragraph 50 of the explanatory notescontains an example of a common that is subject to rights to graze 100 sheep and that is divided equallybetween two farms A and B. The notessuggest:

“Theowner of Farm A dies and the farm is divided equally between thatowner’s two children. Two new dominant tenements A1 andA2”

will each have theright to graze 25 sheep. It goes on tosay:

“Farm B issold to a developer who in turn sells it off in 50 plots, each with ahouse built on it.”

Underthe rules and regulations, the owners of each of those houses

“will be able to show that theyoccupy 1/50th part of the area of the historic dominanttenement B, and (applying the rules of pro rata apportionment)therefore each has attached to it 1/50th of the rightsrecorded as attached to historic dominant tenementB”—

namely, onesheep.

That sort ofthing undermines the integrity of the commons and the credibility ofthe system. As I understand it, that is what must happen under the Billas it is drafted. There is no alternative, as somebody once said. Theexample prompts some detailed questions. Obviously, not all thosehouses will occupy exactly one fiftieth of the original area. We mightget into serious fractions of sheep, because some houses occupyslightly more square metres than others, but I set that pointaside.

Although such asituation could happen in many different scenarios, I raise an ideasimply to get the Minister’s response: there should be a systemwhereby the developer who bought plot B ought to be able under certaincircumstances to sever the rights from all the modern houses and giveor sell them back to the association, or make them available for otherrights owners to acquire. That would keep those rights in the hands ofpeople who seriously want them rather than in the hands of those peoplewho buy houses and end up with the right to one sheep.

I accept that, in somecircumstances, development might mean that house owners would end upwith a number of rights that would have a value. I am not suggestingthat anything should be compulsory, but the developer should have anopportunity to sever the rights. As long as the rights remain on thecommon and must go to a rights holder with a dominant tenement of thecommon, all the principles that the Bill is trying toespouse—principles with cross-Committee and cross-Housesupport—will be retained without leading to the somewhatludicrous and extreme outlined in the explanatory notes, whichnevertheless can and, indeed, does happen. I raise this matter to get aresponse from the Minister at this stage, because it requires furtherinvestigation.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I share some of the hon. Gentleman’sfeelings, but I take some comfort in DEFRA’s advice onidentifying the ownership of rights of common, which states:

“In theDepartment’s view, an apportionment giving rise to a fractionalgrazing right of less than one animal will beunexercisable.”

I am surethat the animal, at least, will be grateful for thatadvice.

Jim Knight (Labour, South Dorset)

I am grateful to the hon. Member for South-EastCambridgeshire for allowing me to catch up. I think that it would behelpful if I explained a little bit about how the clause works; itdeals with the apportionment of rights of common and enablesregulations to be made to deal with the circumstances and the way inwhich the apportionment may beregistered.

Apportionment,for those who are not familiar with the term, is used to describe whathappens to land to which rights of common are attached—a dominant tenement—when it is divided into two or more parcels in separateownership. For example, that may occur when the owner sells only partof his farm holding and retains the remainder. Traditionally, where aland holding is divided between separate new owners, the rights ofcommon attached to that land must be divided between the new owners inproportion to their share of the land, as we have heard in relation tosheep.

I say to thehon. Member for South-East Cambridgeshire that there is an alternative.It is set out in clause 11, which, as we will perhaps discuss, enablesa right of common attached to a dominant tenement to be concentrated onpart of the dominant tenement, where another part is to be developedfor non-agricultural use. I hope that that satisfieshim.

Clause 8 providesthat regulations may enable the registration of apportionment, butsubsection (2) implies, as is our intention, that regulations will notrequire apportionment to be registered, as we discussed in respect ofan earlierclause.

Somestakeholders have asked why we do not ensure the mandatory registrationof apportionment. The answer is a little complex, but to summarise:first, we do not think it possible to require apportionment to beregistered, because there is no sensible sanction that could be appliedin default, nor any likelihood of its enforcement; and secondly, thecommons registers will not show who owns and occupies the land to whicha right is attached. There is little point seeking to registerapportionment, because there will be nothing to change in the registerin consequence of it. The reality is as the hon. Member for Brecon andRadnorshire described it during the debate on clause 3 in respect ofthe Land Registry. We have undertaken to explore whether regulationsunder clause 4 can enable commoners to make a declaration ofentitlement to exercise rights of common that would be includedin the register as additionalinformation.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for giving way, but Iam going to challenge him, because I am not entirely convinced thatclause 11, to which he has drawn my attention, addresses the issue thatI raised and that is raised in paragraph 50 of the explanatory notesthat describes the scenario of the whole dominant tenement beingdeveloped. Although I am happy to be proved wrong—I am notconvinced that I am—clause 11 refers to the “relevantpart” being developed. If there is no remaining part, I cannotsee how the rights can be concentrated upon it if the whole site isdeveloped. Perhaps the Minister could comment or reflect onthat.

Jim Knight (Labour, South Dorset)

I am happy to reflect on that. My reading ofclause 11 concurs with the hon. Gentleman’s: it refers to a part, not the whole, of the dominanttenement. I confirm my initial thinking that if the whole dominanttenement is developed, clause 11 does not apply. I shall reflect onwhether the loss of the dominant tenement in its entirety means thatthe owner should be entitled to hang on to the rights if he sold up andmoved away. We are trying to ensure that commons have that localassociation. If the owner has gone, that association may belost.

James Paice (Conservative, South East Cambridgeshire)

I certainly want to reassure the Minister that I donot want the owner to run off and keep the rights.[Interruption.] As I was saying, Miss Begg, I assure theMinister that I do not want the owner to run off and keep the rights.When the whole of the land is to be developed, there should be amechanism for reallocating to other rights holders who have dominanttenements for thatcommon.

Jim Knight (Labour, South Dorset)

I shall reflect on that, as I will on howunder-grazing, which I think is the concern of the hon. Gentleman,would be best dealt with. If I decide not to come back to such matterson Report, I shall drop a line to him and other members of theCommittee to let them know the outcome of mydecision.

Clause9

Jim Knight (Labour, South Dorset)

The clause effects a prohibition on the severanceof rights of commons with the exceptions set out under schedule 1. Theclause ensures that a right of common that is attached to land is notto be permanently severed from that land, as we have been discussing.Severance means that the local link between the commoners and the landover which the grazing rights are exercised might be lost since theowner of the rights can sell them to anyone, including farmers who livefar away from the common. That can cause management difficulties forcommon land when some rights holders have no close contact with thecommon and those who manage it. There is overwhelming support fromstakeholders for a prohibition on severance under theBill.

Clause10

Jim Knight (Labour, South Dorset)

In common law, it is impossible to convert a rightin gross into an attached right—by that, I mean turn a severed right into an attached right. The clause enablesrights of common held in gross to be attached to land. It will providea mechanism by which rights can be reattached, but there is nocompulsion. An application must be made by the owner of theright.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I understand the benefit of converting rights ingross to rights attached to land, but the clause refers to“any” land. The Minister has already said that if therights that are attached to land are local, there is benefit tomanagement of the commons. How does the Minister reconcile thatposition?

Jim Knight (Labour, South Dorset)

My reaction to the hon. Gentleman’sinteresting point is that, under clause 10(2), the application is tothe commons registration authority, which would have to judge whetherit is in the interest of the common for that land to work. It would besurprising if the registration authority were to attach it to adominant tenement that is remote from the common. Our expectation isthat that would be done in the public interest and attached to thecommon.

Clause11

Jim Knight (Labour, South Dorset)

The clause enables a right of common attached to adominant tenement to be concentrated on part of the dominant tenement,as we discussed in respect of clause 9. That will enable the commonersto retain the full use of their rights when part of their farm holdingis sold for development or acquired under compulsory purchasepowers.

Clause12

Jim Knight (Labour, South Dorset)

The clause requires a change in the ownership of aright of common that is held in gross to comply with prescribedrequirements. If it helps the Committee, lawyers call a right held ingross “incorporeal hereditament”, a term with which I amsure the hon. Member for Meirionnydd Nant Conwy, if no one else, isfamiliar.

Clause13

Jim Knight (Labour, South Dorset)

The clause provides for the surrender of a rightof common to have effect only when the right is removed from theregister following an application to the commons registration authorityby the person entitled to the right. Again, that is about ensuring theintegrity and reliability of theregister.

Clause14

David Maclean (Conservative, Penrith and The Border)

I congratulate theMinister on taking this Bill forward. When I was Environment Ministerin the 1990s, we looked into commons law, and I was advised by theFederation of Cumbria Commoners that it was important that it be tidiedup. Then I listened to the wise advice of my officials in theDepartment, who said, “For God’s sake, Minister,don’t touch this with a bargepole; it’s anightmare.” So I congratulate the Minister on having the courageto tidy up the law; we support what he is doing. I also congratulatehis officials, who, I believe, have been to Cumbria on a couple ofoccasions to meet the Federation of Cumbria Commoners. Cumbria’sfederation is one of the largest in the country, and Cumbria has one ofthe largest patches—or lots of patches—of common land inthe country.

AlthoughI have been briefed by that organisation, I apologise to the Ministerif I do not do justice to the complicated brief that I have beenseeking to understand. I wish to raise points about the regulationsthat may be made under the clause. The Government have stated that thepurpose of the Bill is to provide accurate and up-to-date commonsregisters to underpin commons management, through a duty on localauthorities to update and maintain the registers of common land, and toprovide that future transactions have no legal effect unless they areregistered. The problem is that the Bill does not do that completely;it is only 95 per cent. there.

The Bill will be conclusive onwhat land rights attach to, and on the ownership of those rights ingross. But the register will not be updated or maintained to show whoowns the vast majority of rights—those that are attached. TheGovernment acknowledge that, and they rightly comment that it is notpossible for both the Land Registry and the commons register to beconclusive about the ownership of the dominant tenant. The federationagrees, but does not see a problem with requiring all transfers to benotified to the commons registration authorities. The registers havenever given proof of ownership, but if they are not kept up to date,they are useless for management purposes when commoners need to belocated. Also, significant costs will accrue to the Government andcommoners in cases in which identifying and communicating withcommoners is essential—for example, in respect of applicationsto establish statutory commons associations, applications for environmental stewardship schemes, applications to undertake works oncommons and compulsory purchaseprocedures.

In theother place, the Government argued that there can be only onedefinitive record of ownership. Otherwise, which would take priority ifthere were inconsistencies between the Land Registry and commonsregister entries? The reason is undoubtedly correct; even I understandand agree with it, and that is what the federation says, too. However,it also says that that should not prevent the making of a requirementthat transfers of rights be notified—notified only—to thelocal authority and perhaps be accompanied by a certificate from theLand Registry, or something like that. The commons registers would notbe proof of ownership, but they would have all that informationattached to them, so at least they would then be useful workingdocuments. Without such up-to-date records, otherschemes—applications for commons associations and environmentalstewardship schemes—would become very difficult to set up. Thatwas recognised in the otherplace.

I want toconclude by pressing the Minister to state in this place what hiscolleague Lord Bach said in the other place when pressed on a similarissue. Hesaid:

“I acceptthat we should try to make the commons registers as helpful as possibleto those who do not need conclusive proof of the matters but who wishto have some idea of entitlement. We therefore intend to explore, inconsultation on implementation of Part 1, whether regulations shouldprovide that a declaration of entitlement to exercise rights can beincluded in the registers. I must stress that such a declaration couldnot and would not be conclusive or binding on any person, but it may behelpful that such information can be entered on the register, with anappropriate caveat. We will also consult on whether other informationcould be noted on the registers at the discretion of the registrationauthority, such as Land Registry title numbers and the identity of theowner of the dominant tenement when the authority last sought thatinformation from the registeroftitle.”—[Official Report, House of Lords, 25October 2005; Vol. 674, c.GC315-16.]

It has been a weewhile since that debate in the other place when Lord Bach made thatcomment. I hope that the Minister will be able to say today that theGovernment’s thinking has moved forward—that theintention to consult has firmed up a bit, or that the Government havedone some preliminary consultation and come to a conclusion that thatis a route down which they wish togo.

I want anassurance from the Minister that regulations will be made under thelegislation that enable dealings with the owner of the dominanttenement to be at least recorded on the commons register with asufficient sanction imposed for any failure to notify, so thatnotification becomes the standard conveyancing practice. When rightsare bought or sold and the Land Registry is informed, the registrationauthority should be automatically notified so that the commons registercan be similarly annotated or updated—I probably should not say“annotated” as that probably has some technical legalconnotation. An assurance on that from the Minister would make us veryhappy, and the Cumbria Federation of Commoners would be delighted thatI may have got the point across halfsensibly.

David Drew (Labour, Stroud)

I am delighted to serve under your chairmanship,Miss Begg.

I do not intend to dwell on thissubject. However, the right hon. Member for Penrith and The Border(David Maclean) referred to a debate in the other place, and I wouldlike to address another aspect of the matter, which was an amendment ofLord Greaves on how to fast-track a registration of a common or avillage green. Through my noble Friend Lord Bach, the Governmentpromised to look into how that might be achieved. I know that they havedone so, but I am a little uncertain about what their position is inthis regard.

Let usaddress a possible scenario. Someone in their later years might wish topass over a piece of land that has been used for many years for acertain purpose—the example of cricket use has been offered. Itmight have been used for that purpose for more than the 20years—that seems to be the key period—but if that personhappens to die before the land is passed over, according to theexisting law, it cannot be seen as either a common or a village green.I wish the Government to make it absolutely clear that there is amechanism whereby if someone wishes to pass a piece of land over foruse by the people for the people that is now possible and that we donot have to wait for the so-called statutory 20 years for that to beachieved. I would be grateful if the Minister could clarify exactlywhat resulted from the debate in the otherplace.

Jim Knight (Labour, South Dorset)

We have had a wide-ranging debate. I assure theright hon. Member for Penrith and The Border that according to myunderstanding, his understanding is entirely up to scratch. He shouldhave no worries on thatscore.

It wouldprobably be ideal for all transfers to be recorded as he suggested, butI explained earlier that enforcing such a requirement would bedifficult. We are enabling it because we recognise that it would behelpful for the register to indicate who is entitled to exerciserights. I do not want to disagree with a single word that my nobleFriend the Lord Bach said in the other place. We will enable commonersto enter a supplementary note on the register declaring theirentitlement to exercise rights. The declaration will not be conclusive,but might be informative.

We are also exploring thepossibility, which I hope the right hon. Member for Penrith and TheBorder will welcome, of providing in regulations under the Bill that acommoner need not be consulted on any matter affecting the commonunless he has declared his entitlement to those rights. We areexploring that at the moment. It would be an incentive for thosetransfers to be properly registered. If they are not, ownership ofrights and entitlements can be traced back through the Land Registry,but we agree that ideally it would be better to record that informationon the register. That is what we seek to achieve, but we cannot foreseea scenario in which a requirement to do so could be enforced. If,having read what I said earlier, the hon. Gentleman writes to me with away to do so, I will be happy to look atit.

I turn tofast-track registration of town and village greens. Subject to thepassage of the Bill, it will be possible for an owner to dedicate a green underclause 15(7)without further formalities. I hope that that satisfies my hon. Friendthe Member for Stroud (Mr. Drew). We might discuss it very soon when wemove to clause 15 and itsamendments.

Clause15

Jim Knight (Labour, South Dorset)

I beg to move amendment No. 1, in page 7, line 24,leave out ‘or (3)' and insert ‘, (3) or(3A)'.

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to take thefollowing: Government amendments Nos. 2 to5.

Amendment No. 43,in clause 15, page 7, line 44, leave out subsection(5)(b).

Governmentamendment No.6.

Amendment No. 44,in clause 15, page 8, line 4, leave out subsection(6)(a).

Amendment No.45, in clause 15, page 8, line 8, leave out ‘two years' andinsert ‘oneyear'.

Jim Knight (Labour, South Dorset)

The amendments respond to a concern raised byConservative Front-Bench Members on Third Reading in another place thatland on which houses had recently been built might meet the criteriafor registration as a green under the clause. That situation mightarise if land had already been used as of right by local inhabitantsfor lawful sports and pastimes for at least 20 years before thedevelopment took place. It would be an unusual circumstance, but itwould be unacceptable if the clause were to allow the registration ofland where houses stand today. The amendments will prevent that fromhappening. If land was covered by a building or its curtilage on 18April 2006, the date the amendments were tabled, it will not beregistrable.

Paddy Tipping (Labour, Sherwood)

I am sure that the word“curtilage” has a good deal of legal significance.Presumably it applies to gardens, outbuildings and paddocks. Inprinciple, therefore, it could mean quite a large take of land. Can theMinister explain what curtilagemeans?

Jim Knight (Labour, South Dorset)

I am grateful to my hon. Friend for offering methe opportunity. A judicial decision on the meaning of curtilage wasgiven in the Court of Appeal in 2000. He will recall, being a representative of Nottinghamshire, that the case was Skerritts of NottinghamLtd v. Secretary of State for the Environment, Transport and theRegions. The court held that land is considered to be within thecurtilage if it is part and parcel of the principal building or otherstructure. Land is within the curtilage if it is owned and enjoyed withthe principal building and can be regarded as ancillary to it. It is aquestion of fact and degree in each case, and examples include a yard,basement area, passageway, driveway and garden, which are intrinsicallypart and parcel of the house. If houses have been built on one part ofa larger area of land that has been used as a green, one would not expect the whole ofthe land to be regarded as the curtilage of the houses. If such houseshad physical enclosures around them to create their own space, theircurtilages might well be taken to be defined by those enclosures, butthose curtilages would not extend to the rest of the land. I hope thatthat is helpful to my hon. Friend.

Several hon. Membersrose—

Jim Knight (Labour, South Dorset)

I give way first to my hon. Friend the Member forSherwood (PaddyTipping).

Paddy Tipping (Labour, Sherwood)

I know Skerritts, and am grateful for thedescription. However, this matter leads to difficulties. We have tolook at issues on a case-by-case basis. Clearly, a paddock at the endof a garden might or might not be within the curtilage of a building,depending on the history. We shall need to reflect on the issue alittle more, because it will becomecontentious.

Jim Knight (Labour, South Dorset)

I am glad to say that I am not a lawyer, and Ihesitate to go much beyond my brief in trying to define whether apaddock is curtilage. My lay person’s view is that a paddock isancillary to a stable or other land on which horses are kept, but notto the principal building. However, as I say, I am not alawyer.

Paul Truswell (Labour, Pudsey)

At the risk of being obtuse,may I pursue the Minister over the definition of a building? Is abuilding a house, barn, store, cattle shed, shelter orbirdwatchers’ hide? Are we talking about any sort of building?If so, will that not cause further problems, given that buildings mightbe erected to thwart town greenapplications?

Jim Knight (Labour, South Dorset)

I feel a note coming on. The key phrase that Iused—and that I understand was used in the judgment of2000—was “principal building”. A shed, greenhouseor stable would not be regarded as principal. The definition ofbuilding is used in everyday speaking terms. I suggest that my hon.Friend should focus on the phrase “principal building” inthinking about thisissue.

Tom Levitt (Labour, High Peak)

I hope to catch your eye later,Miss Begg. I should like to raise a particular local issue.

In the Minister’s view,is a graveyard curtilage? Would it make a difference if the graveyardwere fully occupied? If the chapel to which the graveyard was attachedwere derelict, would that make adifference?

Jim Knight (Labour, South Dorset)

My hon. Friend raises a fascinating question, onwhich I shall reflect. Perhaps a graveyard is curtilage to a church,the church being the principal building. However, I need to givefurther thought to that.

James Paice (Conservative, South East Cambridgeshire)

I thank the Minister for giving way. I want to getback to the word “building”. My question will not be asobtuse as some others. Does “building” mean a completedbuilding? Bearing in mind that the designation of the land is triggered on a specific date, therewill—I have been told of examples—be buildings underconstruction to which the clause would apply. Clearly, we need toclarifythat.

Jim Knight (Labour, South Dorset)

I am grateful to the hon. Gentleman for askingsomething about which I have thought. Any particular case would be amatter for interpretation on all the facts and evidence, but ourgeneral view is that if a building was already in the course ofconstruction on 18 April 2006, it would be covered by the exemption, aswould any curtilage set out for it on the planning consent. If it hadgot no further than a few trenches or drains, that might be a differentmatter. If a start had been made on erecting the fabric of thebuilding, we think that it would be exempted under the formulation.That would not apply to other buildings that were scheduled under thesame development but had not yet been constructed on that date. Thepurpose of amendment No. 4 is to come to the assistance of buildingsthat already existed on 18 April, rather than to help implement partsof planning consents that had not by then beenimplemented.

David Drew (Labour, Stroud)

This intervention is germane to that point. One ofthe problems with the planning system is that someone could havereceived permission for a building many years before and they can provethat they have started its construction. My hon. Friend the Member forHigh Peak (Tom Levitt) asks what we mean by “underconstruction”. If someone wanted to prove the point, the factthat someone has laid a brick might mean that a building was underconstruction. Subsequent to that, the piece of land might have comeinto common use. How does one overcome that dichotomy? The originalpermission might have been granted but the present use is as a villagegreen or as a piece of common land. Who can resolve that issue and howcan that be done?

Jim Knight (Labour, South Dorset)

As I said in response to the hon. Member forSouth-East Cambridgeshire, any particular case would be a matter forinterpretation of all the factors and the evidence. One would hope thatthe registration authority and any other body, if the matter werereferred elsewhere—ultimately these things are challengeable byjudicial review—would examine the facts and the evidence in theparticular case. If the view was that planning consent had been givenbut had effectively lapsed and instead the land was then used as agreen, perhaps it would approve the application. The amendment that weare discussing could therefore be put to one side. Such a decisionwould be made on the basis of the facts and the evidence in thecase.

Prior to thatflurry of debate and interest, I was detailing the Governmentamendments. To give effect to the principle that we have justdiscussed, we have restructured the clause slightly. We think that isworth doing, even though it requires six amendments. Essentially, theexisting subsection (3) would deal with cases where use “as ofright” is ended after commencement of the clause, whereasproposed new subsection (3A), introduced by amendment No. 4, deals withcases where such use had already ended before commencement. I can gothrough that in more detail should hon. Members wish me to do so, but I hope that my comments have proved sufficient. The remaining amendmentsare consequential on the restructuring we have done, and have no widereffect on the outcome.

Amendment No. 43, tabled by thehon. Member for South-East Cambridgeshire, would omit subsection(5)(b), which says that where there has been 20 years’recreational use of land as of right by local people, the subsequentgranting of permission for them to use the land does not end thequalifying use. I cannot accept the amendment, because it is based on apresumption that we believe to be wrong, which is that the owner of anarea of land that has had that kind of long-standing pattern of use“as of right” should be able to remove the registrabilityas a green by, for example, putting up a welcoming sign on the land.That kind of action does not put the local inhabitants on notice thattheir future ability to use the land is underthreat.

James Paice (Conservative, South East Cambridgeshire)

Obviously, I have not reached the point with myargument yet. I am afraid that even with the subsequent groups ofamendments there will be some crossover in this debate. The Ministerused a word that is not in the clause. He referred to situations wherethe landowner “subsequently” does something to grantpermission. That is not referred to in subsection (5)(b); there is nosuggestion that it was subsequent to theright.

Jim Knight (Labour, South Dorset)

The course of events—the sequence—isvariable. My reading of things is that we must account for subsequentaction. Does that help the hon. Gentleman.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister. No, it does notreally, because the point I am making now and in amendment No. 47 isthat when the owner may have consistently given consent, on theunderstanding that it was not giving rise to permanent rights, it isunreasonable, and contrary to human rights, that that owner’sinterests should be taken away.

I agree entirely with the hon.Gentleman’s response to my amendment, which is that someoneshould not be able to plonk up a sign after 19 and a half years andsay, “I have let you have it out of the goodness of my heart forall this time, but now you cannot have it as a village green.”Of course that would be an abuse. However, the provision is actuallyremoving retrospectively something that may have been permissive allthe waythrough.

Jim Knight (Labour, South Dorset)

I am grateful to the hon. Gentleman for hiscomments. It may be helpful if I listen to his argument in favour ofthe amendment and then I may have the opportunity to address mattersmore fully. Amendments Nos. 44 and 45 were also tabled by the hon.Gentleman. In a situation where 20 years' qualifying use of land has been ended, for example, by excluding people, clause 15 allows a period of grace during which application may be made to register the land as a green. A period is normally two years, but is to be five years in a case where qualifying use ends before the clause takes effect. Those two amendments, taken together,seek to replace the two periods with a single period of grace of oneyear in all cases.

The Government resist theprinciple of shortening the period of grace because, if long-standinguse is ended, there needs to be a fair opportunity for application.There is much to do before a viable case for registration can be made,as my hon. Friend the Member for Pudsey (Mr. Truswell) outlined duringour debate on Second Reading.

Local people have to find outthat that area of law exists. It is not everyday knowledge that it doesexist. They must then get hold of the guidance material and assesswhether their circumstances are likely to meet the stringent criteriafor registration. If so, they must find a range of witnesses to thequalifying use of the land and collect all of their detailedstatements. They must then bring the statements and supportinginformation together in the prescribed form in a proper application tothe authority.

Peoplelead busy lives. They are usually doing the work in their spare time oron a voluntary basis. They can not just drop everything and concentrateon getting their local green registered. In addition, under thecustomary law, any freestanding period of use would potentially havebeen enough to get land recognised as a green, even if there had been asubstantial interruption to use since. Clause 15 tightens that upconsiderably so that there will only be a limited window for localpeople to act before it is too late to register the land. However, Ifeel that we have gone as far as we intend to go, and as is reasonable,in imposing such alimitation.

Anne Begg (Labour, Aberdeen South)

It would be useful now to discuss the remainingamendments to the clause. Therefore, it is convenient to take also thefollowing amendments: No. 42, in clause 15, page 7, line 24, at endinsert—

‘( ) subsection (1)does not apply to land for which atcommencement—

(a)planning consent has been granted,or

(b) an application forregistration as a town or village green has been refused within aperiod of fiveyears.'.

No.46, in clause 15, page 8, line 14, at endinsert—

‘( ) before agreeingto register any land the registration authority must take reasonablesteps to inform the owner of any part of the land and consider whetherthe owner(s) has taken reasonable steps to prevent the land being usedas described in subsections (2) and(3).'.

No.47, in clause 15, page 8, line 14, at endinsert—

‘( ) beforeregistration of any land the registration authority must considerwhether the owner(s) of that land shall be able to show that the usersof the land were informed throughout the period that consent to suchuse was temporary and would not give rise to permanentrights.'.

James Paice (Conservative, South East Cambridgeshire)

That is a wise decision, Miss Begg. It means thatall the remaining amendments stand in my name. Clause 15 is probablythe most controversial aspect of the Bill. Obviously I, as did theMinister, listened to the debate on Second Reading. I will give way ifthe hon. Member for Pudsey thinks that I am misrepresenting him, but hewas using the debate as the last opportunity—the fall-backposition—to prevent a piece of land from possibly being used for development if people hadbeen using it to exercise their “lawful sports andpastimes”, which is a funny choice ofwords.

Most of usaccept and agree that there are lots of pieces of land that, asregistered village greens, would be a huge addition to the community.Therefore, we wholly support the principle of being able to registernew land as a village green. Nevertheless, as Members of this House, wemust find the right balance between the rights and needs of society andof the owner. It would be easy to couch this debate in terms of a localcommunity against some rapacious developer. I do not doubt that thereare examples of rapacious developers who have sought to build on whatmost people would consider to be a village green. However, there willbe many more examples in which the land is not owned by a rapaciousdeveloper, but by, for example, a small village builder or an elderlylady who has left it there for years thinking that it would be a placefor her son or grandson to build a house.

There are all sorts ofpermutations and possibilities for the type of the land that we aredebating. It would be regrettable if we couched the debate purely interms of large-scale development.

Paul Truswell (Labour, Pudsey)

I have listened with interest to the hon.Gentleman’s comments following his reference to my contributionon Second Reading, and I take exception to his use of the term“fall-back position”. On Second Reading, I explained thecircumstances around Yeadon Banks. Local people had used the land inquestion for generations. It had been green belt land, ceased to be asresult of the unitary development plan process and the public inquiry,and therefore the local community felt that the planning process hadfailed to help them retain that piece of land. When they discoveredthat they could apply for town green registration, they started thatprocess. So it was not really a fall-back position, but an attempt toprotect land that had been used forgenerations.

James Paice (Conservative, South East Cambridgeshire)

I am happy to accept the hon. Gentleman’scorrection of my understanding of his words. Clearly, I do not haveknowledge of his particular constituency case, and nor shouldI.

My general pointremains: there is a whole raft of possible scenarios for the type ofland to which we are referring, and we must not carry out this debateon the basis of one particular perception. We have a responsibilitytherefore to find a balance between those rights and needs of societyand a community, and the owner of the land—whoever he, she or itmight be.

I readilyaccept that the amendments are designed to tilt the balance backtowards the landowner slightly—although not excessively. I amsorry that the Minister concluded his opening speech by saying,“That is as far as we intend to go.” Perhaps that is hismarker, but I hope that he will listen to and consider mypoints.

AmendmentsNos. 44 and 45 address the period in which an application can be made.In fact, amendment No. 44 will fall, given that we are likely toapprove the Minister’s amendment No. 6 which deletes the wholeof subsection (6). He has achieved what I tried to do with amendmentNo. 44, although he has reintroduced the five years provision in amendment No. 4. I must challenge that. Fiveyears is a very long time, and if the public, or“inhabitants”—the word used in theBill—have been using land as of right for 20 years, it isastonishing that that use may stop five years before completion of anapplication.

Actually, I do not agree withthe Minister’s pleadings that two years is necessary for anyother case. A year is still a long time, and if people feel stronglyabout the need to protect their land, one year is a more than adequateperiod in which to complete the application with all the relevantdetails—I think that the Minister rather over-laboured theproblems with getting that information in place. I challenge himparticularly on the five years. If people ceased using land five yearsago, I cannot for the life of me understand why they should then havethe whole of the five years to put in the application. I cannot see thejustification in such action, nor can I even envisage an appropriateexample.

I shall moveon now, Miss Begg, to the other amendments that you rightly suggestedwe should also debate. Amendment No. 42 goes back to the discussionthat began with a series of interventions on the Minister’sspeech. I welcome the Government’s amendments which, as theMinister rightly said, were tabled in response to issues raised by mynoble Friends in the other place. I am also grateful for his coming upwith the principle of proposed subsection(3A).

When answeringthe question about a definition of a building, the Minister said that,if it meant only that the odd ditch or two had been dug, that might notapply. It certainly would not apply to other properties on thedevelopment that had not been commenced. I am grateful to see theMinister nodding. Some examples of developments being under way havebeen drawn to my attention. As he knows, a development is, to use anold-fashioned Labour word, a composite. Its infrastructure is the roadsand utilities. It is integrated. If we then say to the developer thatthat section cannot now be built, it will throw the rest out ofproportion. It means that the roads are in the wrong place and the costof the infrastructure that the developer will have planned to shareacross all the properties will have to be shared among the fewerproperties that can be built or have been completed. There might not beany properties. Therefore, the Minister is wrong to suggest that thebuilding has to be well under construction before the clause ceases toapply. He should go back a stage ortwo.

The other matteris cost. Again, examples have been drawn to my attention. For obviousreasons, the individuals concerned do not want me to announce who theyare because they are carrying out developments at present. Manyhundreds—if not millions—of pounds have been spent bybusinesses and local authorities on public inquiries. In some cases,development has commenced but not completed, yet the Minister isproposing that all that money could be lost at huge cost to thebusinesses because someone might apply for a village green. In fact, inone case a person did apply for a village green under the currentlegislation. The application was lost. The matter then went to publicinquiry. The developers won planning consent and they are two thirds ofthe way through the development. They will lose the other third on the basis of the discussion that we have just had. Although I cannot speakfor them, there is likely to be a law suit against the Government inrespect of the costs that have beenincurred.

Despite hisclosing remarks, the Minister needs to consider matters further. Wemust bear in mind a major planning proposal, especially when a grouphas already applied for registration as a town or village green thathas been refused within a recent time. In amendment No. 42, I used thesame five-year period that the Minister used and I am happy to reduceit to a much lesser period if he will do so under his amendment. Heneeds to think more about the balance between the two situations,especially given that there could be major legal disputes andchallenges against the Government if they continue acting as they havebeendoing.

I would alsomake the smaller point that often a development is about not justhousing but community services. There may even be—althoughprobably not that often—a new post office, or certainly acommunity centre. It would be pretty ironic if the community centre wasnot allowed to be built because it happened to be the last thing on thedevelopment schedule to be built. The houses would be put up, but notthe community centre that was part of the development, and so, becauseof the Bill, the community would lose out on its community centre. TheMinister needs to take the provision away and look at it a little morecarefully.

I come toamendments Nos. 46 and 47. I shall refer to notes that I expect otherhon. Members have also received from the Country Land and BusinessAssociation. It refers to the common land policy statement that theGovernment issued in 2002, in which they proposed

“introducing a formal mechanism bywhich landowners could clearly indicate that, although use of the landmay continue for the time being, the nature of the use has ceased tomeet the criteria for registration as a town or village green. Anyfurther use would be by general permission of the owner. There wassupport for providing a clear and unambiguous mechanism for making thepublic aware of their position and we plan to do so. This will requireprimarylegislation.”

Unfortunately,that has not found its way into the Bill, but it is the genesis ofamendments Nos. 46 and 47. Both of them simply require the registrationauthority to consider two possible actions that the owner of the landmay have taken before the authority agrees to register. The first istaking action to prevent the land from being used by putting up somesort of fencing or security system. To come back to the point that theMinister made about amendment No. 43, I certainly agree that the ownershould not be allowed suddenly to come along, 19 and a half years afterthe public started using a piece of land for lawful pursuits, and stopthat use, and expect to evade the requirements of clause 15.

However, on amendmentNo. 47, what if someone has a piece of land and expects, or is happyfor, people to walk across it, walk their dogs on it or play ball onit, but wants to retain their interest in the property? Of course, onceit becomes a village green it is effectively of no value to theowner.

Jim Knight (Labour, South Dorset)

To help the debate, in respect of amendment No. 43, the supplementary words are significant. Subsection (5)(b), which the hon. Gentleman seeks to remove, applies only when subsection (2)(a) applies—that is, after 20 years have passed. With the leave of the Committee, I will respond to the other amendments later, including No. 47. But I hope that my interpretation of amendment No. 43 is helpful.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister. Perhaps while he is replying to the other amendments, I will have a think about that reply. He is right that we need our debates to be as constructive as possible.

I stress that under amendment No. 47 I am referring to cases in which the users of the land were informed throughout the period that consent to such use was temporary and would not give rise to permanent rights. Arguably, it would be difficult for someone to demonstrate or prove that; nevertheless, the owner should have the right to do so. Equally, on amendment No. 46, if the owner has taken serious steps—I am not talking about just a piece of string—to prevent the land from being used as described, that should be taken into account. If the owner has erected sensible fencing and people have consistently broken it down so as to get on to a piece of ground to walk their dogs, I wonder whether they should have their property confiscated. That is what the impact of clause 15might be.

I am sorry to have taken some time over this group of amendments, but I think that it was right to discuss them all together. I seek, through a variety of propositions, to shift the balance slightly back towards the genuine landowner, who could be of any type, and to introduce a little more proportionality into the idea of the creation of village greens. If land has been used for 20 years without let or hindrance or the owner’s trying to stop that use, I entirely support what the Minister is trying to do. We want more village greens, but we also support the general principle of property ownership: the owner has a right to protect his property and the rights that accrue to him from it. At the moment, the clause tilts the balance rather too far away from that. I hope that the Minister will consider our points seriously. While he responds, I shall think further about his point on amendment No. 43.

Tom Levitt (Labour, High Peak)

Like other Committee members, I am pleased to serve under your chairmanship, Miss Begg. The last time that I scrutinised legislation line by line in a Committee, I was sitting beside you on the pre-legislative scrutiny Committee for the Disability Discrimination Bill. You showed a lot of common sense then, and “commons sense” is clearly what we all require today. I cannot let the moment pass without pointing out that this week marks the 74th anniversary of the Kinder trespass—a wonderful moment in the history of this country, and of my constituency in particular. In that spirit, I am very much in favour of the Bill and its measures. I also have some sympathy for the points made by the hon. Member for South-East Cambridgeshire, although I put the problem down to inadequate guidance rather than to a need to amend the Bill in the way that he advocates.

Having said that, I should like to take the opportunity to question the Minister about a situation that has arisen in my constituency. As I mentioned in an intervention on the Minister for Climate Change and the Environment on Second Reading, there have been two instances in which I believe that the town green applications have been misguided and unhelpful for the common good of the community. The first was in an area in Buxton called Fairfield where planning permission has been given for some 300 houses, including a significant proportion of much-needed social housing, on a large piece of land adjacent to a huge and well established common. I stress that the application is not for land that is or ever has been regarded as common land, but access to the new site is across a smaller piece of land for which a town green application has been submitted. That application was submitted after the planning permission was given. As a result, because of unresolved cases going through the courts, the decision as to whether the town green application should be granted has been delayed by several years—even the main campaigner for the town green no longer lives in the area, so presumably no longer has an interest. Everything is waiting for court cases to be decided elsewhere.

The second instance is in New Mills where, the Minister will not be surprised to hear, a derelict Methodist church and its graveyard, along with a small piece of adjacent land owned by the town council, has been designated as the site of a new magistrates court to serve the whole of the High Peak. It is a facility that is badly needed; we have inadequate magistrates court facilities. Although the planning application was initially refused by High Peak borough council, it went to appeal and public inquiry and was granted to Derbyshire courts on appeal—from memory, about three years ago. Immediately after the appeal had been granted and the planning permission was given, a town green application was made on a small part of the site that was, nevertheless, crucial in giving access to where the magistrates court was going to be situated. That piece of land is in an entirely urban residential area. From recollection, it is roughly the size of this room, but it has held up major public works for several years. At one point, a public inquiry was established by the county council for a hearing into the town green application. That public inquiry was cancelled on legal advice, at a cost to the taxpayer, because of the outstanding cases going through the courts in relation to other town green applications elsewhere.

I consider that both town green applications were made not on the merits of the land in question, or for the purpose of enhancing the environment or retaining rights of common usage, but to frustrate planning permissions. In one case, since April 2005, the applicant is no longer Derbyshire courts but the Department for Constitutional Affairs, which now has direct responsibility for the provision of magistrates courts.

All those delays are at a great cost to the taxpayer and we cannot see, at the moment, how or when these matters will be resolved, because every time that a case comes up, another one follows it through. The problem is the paucity of the guidance that is given. The courts are simply deciding a succession of case law each time and, because of an inadequate guidance framework, new case law leads to future guidance changes, which means that the authorities making the decisions on whether to grant a town green application are on shifting sands and can never be really sure of their ground.

I have written to the Department following my intervention on Second Reading last week and I await the full, detailed responses. I hope that the Minister and the Committee agree that town green applications should normally be made before planning permission is given, that applications designed principally to thwart the legitimate planning process should get short shrift and that the use of repeated town green applications for the same land should not be allowed to cause inordinate delays to the development process.

How does the Minister see the contents of the Bill—or the Act, when it becomes enacted—affecting outstanding town green applications that have not yet been decided on? Would those become subject to the Bill?

It is a matter of strengthening guidance, rather than changing the Bill. I am happy to go along with the Government amendments and pleased and proud to support the Bill. However, where cases arise that are tantamount to abuse of the system—as I think is so in two instances in High Peak—I hope that they can be addressed through firmer guidance.

Philip Dunne (Conservative, Ludlow)

Thank you, Miss Begg, for calling me. I should like to endorse the comments of other Committee members: it is a pleasure to serve under your chairmanship.

I support the amendments tabled by my hon. Friend the Member for South-East Cambridgeshire. I remind the Committee of my declaration of interests, which I identified on Second Reading, in relation to some grazing rights and modest ownership rights in common land.

I should like to draw the Minister’s attention to two areas of conflict, which may arise if we do not take into account the amendments tabled by my hon. Friend. One relates to the Highways Act 1980 provisions that I referred to on Second Reading, which provide protections for landowners to give rights of way over their property, although those are not permanently enshrined. Section 31 of that Act allows a landowner to give notice that it is not his or her intention that land should become permanently dedicated as a right of way.

A similar provision ought to apply to a green to which a landowner gives permissive access. The two approaches will be inconsistent if the Bill is more prescriptive than the 1980 Act. The Minister might argue that we should change the 1980 Act. That will be for him to say, but I do not favour it.

Part of my concern arises from the length of time involved and the retrospective nature of the proposals. On Second Reading, I raised an example from my constituency in which some Glebe land owned by the Church had been used for pastimes such as leisure pursuits and dog-walking for much longer than 20 years. If the landowner does not wish their land to be registered, it will in effect be confiscated as a result of the provisions unless we pass the amendments, and I am not sure that it is the Bill’s intention to disfranchise that kind of owner in such circumstances.

A related point concerns Human Rights Act 1998 implications. A particular case was brought to my attention by one of my constituents. The Bill, if not amended, could fall foul for not being compatible with the Human Rights Act, particularly article 1, protocol 1 on the protection of property. The disproportionate limitation of property rights has no viable means of protecting the right to freely enjoy possession. The case that my constituent highlighted was JA Pye (Oxford) Ltd v. United Kingdom 2005. I can give the Minister the reference number if he needs to look it up. I should be interested to know whether he has considered the Bill’s Human Rights Act implications for landowners. He might like to comment on that before the question is put.

David Drew (Labour, Stroud)

I shall ask the Minister a number of questions. During debate in the other place, a considerable amount of time was spent on the matter that we are discussing. I agree with the hon. Member for South-East Cambridgeshire that it is at the centre of the Bill. Hon. Members in the other place were trying to define the term “public interest”. Having read that debate and heard what the Minister said subsequently on Second Reading here, I am still not sure whether we have managed to clarify exactly what we mean by the public interest. It is crucial to the maintenance and enhancement of common land and village greens in particular.

I take note of what other hon. Members said about curtilage in their interventions. Given that we are all awaiting with bated breath the verdict in the Oxfordshire Trap Grounds case, I am concerned that we could make the situation more confusing if we are not careful. We might even be making it more restrictive for those who, like myself, want common land, access and proper use of land to be restored. If we are not careful, we could make it worse.

I ask my hon. Friend the Minister: having obtained some more balance in the legislative framework than was originally proposed, why does he feel duty bound to delete subsection (6) in particular? I disagree with the hon. Member for South-East Cambridgeshire on the time scale. We need proper safeguards. By altering the time when an application can be made where there has been a lack of use and changing the definition of the relevant period, we seem to be erring in favour of those who wish to redefine and reuse the land. I accept that this issue will always be problematic, because we run directly into the planning process as against the nature of what I see as public land that should be protected as such, but I am not sure whether my hon. Friend is not making it more difficult for people who wish, as my hon. Friend the Member for Pudsey described, to make a genuine application.

The problem is the abuses that we all know about. As my hon. Friend the Member for High Peak said, applications can be used as an opportunity to forestall what seems to be the best use of the land. However, we have to be careful—obviously, this clause will be considered carefully, linking directly with the next clause; I am sure that my hon. Friend the Member for Sherwood and I will have things to say about that—when people are trying to change the use of public land. Sometimes that is for a good purpose, such as my hon. Friend the Member for High Peak described, but we must be careful that the safeguards are not being eroded.

That is why I ask why the Government are taking out clause 15(6) and, with regard to the Minister’s earlier responses on how the curtilage of a building affects common land and, in particular, the designation of a village green, why what the Government now propose seems less strong than what was originally in place when the Bill came from the other place.

Dan Rogerson (Liberal Democrat, North Cornwall)

I am, to a great extent, convinced by the arguments advanced by the hon. Member for Stroud about not seeking to be obstructive to attempts to preserve rights of access to open spaces and common land. I have specifically used the phrase “open spaces”. I suspect that the hon. Gentleman, like me and other hon. Members, has received information from the Open Spaces Society. The hon. Member for South-East Cambridgeshire referred to valuable briefings from the Country Land and Business Association. As always, there are many sides to the various discussions, so it has been useful to read the submissions given to us.

The Minister referred to the capacity of volunteer organisations to take advantage of the provision made by the Bill to apply to register greens. We need to preserve that facility for such organisations. The maximum time should be given to allow such applications to be made and to move forward.

With regard to applications that have failed, the hon. Member for South-East Cambridgeshire was keen to say that further applications could not be made within a specified period. Again, I am sure that volunteer organisations will make every effort to get applications right the first time around, but it is important that if an application fails on a technicality, they should have the right to submit a further application, having reflected on that.

We are considering Government amendments and amendments tabled by the hon. Member for South-East Cambridgeshire. His amendments Nos. 46 and 47 relate to attempts by landowners to make it clear that any rights being given are temporary, or rather that any access given is temporary. I am more sympathetic to that. It is clear that in respect of an event possibly taking place or a community activity occurring in a village or town, this could act as a great disincentive to people allowing that to happen on their land. It is important that we take on board the provisions in amendments Nos. 46 and 47 to allow landowners the opportunity to demonstrate that they have allowed these permissions on a temporary basis.

Amendments Nos. 46 and 47 are sensible, but I am less sympathetic to the Government’s amendments to the clause, and to amendment No. 42.

Paul Truswell (Labour, Pudsey)

I want to speak on this clause not only because, as I made clear on Second Reading, I have a particular constituency interest, but because I have observed the process that my constituents have had to go through in some detail. I caution Committee members against the comments of the hon. Member for South-East Cambridgeshire—and also, I have to say, of my hon. Friend the Member for High Peak—in respect of adopting a lowest common denominator approach that aims to prevent the few cases of abuse, but at the same time throws the baby out with the bathwater in terms of the many legitimate applications that have been made—some of which are in abeyance—and that I am sure will be made in the future.

Part of the problem is that the hon. Member for South-East Cambridgeshire predicates his view and approach on the belief that the process is now loaded against the landowner. My experience is that putting in a town or village green application is an extremely difficult and complex process. My hon. Friend the Minister alluded to some of the components of that.

The idea of not being allowed to submit an application within five years of an unsuccessful application should be fiercely resisted. As was recently alluded to, because this is a complex process that is undertaken by what are essentially volunteers from within the community, it is quite possible that they will get it wrong. Indeed, I suspect that some of the applications submitted in order to thwart planning applications might not be fully considered—might not be submitted in the most cogent way possible—and that they may fail because of that.

We obviously have a problem with Trap Grounds. Some applications have probably failed. I do not know what records have been kept throughout the country on how many applications have been heard and automatically rejected because of Trap Grounds. I know that many local authorities, including Leeds city council in my area, have tried to defer consideration of these applications. The application in respect of Yeadon Banks in my constituency was submitted in July 2004; clearly, some time has elapsed since then, because of Trap Grounds.

I agree with the comments of my hon. Friendthe Member for Stroud about the deletion of subsection (6). I support him in pressing the Minister for clarification on that. We do not want a situation to arise whereby some of the applications—

Jim Knight (Labour, South Dorset)

If it will help my hon. Friend, let me say that the provisions of subsection (6) are simply re-enacted by subsections “(3) or (3A)” as referred to in one of my amendments. They are all still included. This is just a case of what I referred to in my opening remarks as reordering everything to make better sense. I hope that the fact that those provisions are all still included reassures my hon. Friend, and helps to move the debate forward.

Paul Truswell (Labour, Pudsey)

I am grateful for those comments.

Further to amendment No. 42 and the suggestion that the existence of a substantive planning permission should be an obstacle to the further progress of a town green application, I suggest that the two processes are entirely separate. Again, I can cite my own parochial example; the planning process has not been particularly helpful in protecting an area of land that has been in public use for generations and, certainly on a prima facie basis, meets all the tests that in due course it will have to satisfy, when and if the local authority gets round to determining things, in the context either of the Bill or of the decision on Trap Grounds.

The idea that we are dealing with landowners with limited resources is not the point that we should examine. We should defend the town green process and, if anything, make it far easier. As my hon. Friend the Member for Stroud indicated, the application in my constituency has been a lengthy process. Advice has had to be sought and people have had to mull over complex and arcane legal commentaries. There has been a need to raise awareness within the local community, organise public meetings and establish a committee to carry out the application process. People have gone round to try to get sufficient statements of evidence to demonstrate that the town green application meets the requirements.

That process is one of the reasons why I hope that the Committee will resist amendment No. 45. In my experience, reducing the period available to undertake such a convoluted process would be an obstacle to some communities. As my hon. Friend said, we are talking about volunteers in the community who have other lives.

I would caricature the application process as being a little like getting a complex piece of do-it-yourself furniture and having to piece it together in some sort of treasure hunt, only to discover that some essential pieces are missing. I counsel Members who are persuaded or influenced by comments made from the Opposition Front Bench and by my hon. Friend the Member for High Peak not to throw the baby out with the bathwater and make the process more restrictive.

My experience shows that the vast majority of people do not know what a town green is. I am sure that many communities have town or village greens but do not realise that they might be able to achieve that legislative and formal status until a planning application or unitary development plan demonstrates that the land is not as sacrosanct as they had hoped.

Paddy Tipping (Labour, Sherwood)

This has been an important debate with historical relevance in this place. There has always been an argument between those who believe in the rights of the private owner and those who favour the wider, informal rights of the public good. If one were to look at the records of Parliament, one would see that that has been debated strongly many times.

The hon. Member for South-East Cambridgeshire, with whom I agree on many issues, made thecase, supported by the hon. Member for Ludlow(Mr. Dunne), for the primacy of the right of private ownership. However, the world has changed. The importance of the wider public good and the right of public participation has increased, and that trend will continue. My hon. Friend the Member for High Peak talked about the Kinder Scout trespass, and one of this Government’s monumental achievements has been the Countryside and Rights of Way Act 2000, creating the right of wider access to wild and open spaces. My hon. Friend the Minister and his officials have worked hard to balance that wider public right against that of private ownership. He listened to the debate in the other place and has tabled amendments that recognise some of the concerns expressed by the hon. Member for South-East Cambridgeshire.

Some of us feel that the powers of the Bill do not go far enough in looking after the public good and the right of wider informal use of land. The Minister and his officials have listened to the debate and tried to find a balance, and I urge him not to go any further. Having watched the progress of the Bill, I have seen movement towards the rights of private ownership. I counsel him to maintain his present position and not to give further ground, because informal areas that have acquired a tradition of usage over many years are important for the community at large and should not be given away in the manner that is being asked today. The balance is right and we should stick with it, because—in the old phrase—this land is ours.

Jim Knight (Labour, South Dorset)

Those Members who were on the Standing Committee of the Natural Environment and Rural Communities Bill will remember that I always took seriously the words of counsel from my hon. Friend the Member for Sherwood, and I see no reason to deviate from that course now. The debate has been useful and I shall try to address the points that have been made as best I can. If I fail in one or two cases I shall write to Members accordingly.

The hon. Member for South-East Cambridgeshire raised a question about the five-year grace period from commencement for cases in which access to a green was ceased prior to commencement. My hon. Friend the Member for Pudsey made a strong and passionate case for a sensible grace period. The five-year period applies when use as of right has ceased, and I think that five years is appropriate to allow a catch-up.

The hon. Member for South-East Cambridgeshire also talked about development and made some interesting points about larger developments and about community developments that may be happening, which may be frustrated by the April date of a week ago. I shall reflect on what he says, but I ask him also to reflect on the fact that clause 15 re-enacts, with some modifications, the existing regime for registering land that has had 20 years’ recreational use as of right by local people. It reflects the customary law position in which any free-standing period of that kind gave rise to a presumption that land was a green, even if it had occurred many years earlier. The element of risk that the developer undertakes, therefore, has in many respects not changed and will not do so by virtue of the amendment. If the development of a community centre that is wanted by the whole community is affected then obviously there is capacity for exchange in order to allow that, although it may not be entirely to the satisfaction of the hon. Gentleman.

On amendment No. 42, determination of a planning application turns essentially on policy considerations. A committee of local politicians decides, in light of national and local guidelines, whether to allow a development to proceed, and it is well established that any consent that it gives is without prejudice to other constraints that may affect the use of the same land, such as the existence of prior rights over the land that may make the development unlawful. I recognise, of course, that some particularly difficult and emotive situations can arise locally in cases when, after the giving of planning consent, there is an application to register the same land as a green—my hon. Friend the Member for High Peak has explained that.

Ultimately, determination of an application to register land as a town or village green is a legal, rather than a policy matter. The sole issue is whether the qualifying recreational use by local people has occurred. The tests are tough, but if the local inhabitants can meet them, they prove that the land is a green and should be registered as such. It would be wholly inappropriate for the Bill to treat a planning consent as overriding the scope for such registrations.

On the second point in the amendment, the Government do not agree that registration should not be possible if an application to register the land was refused in the five years before the commencement of clause 15. As Committee members know, the Court of Appeal decision in the Trap Grounds case that we have discussed has for some time effectively prevented registration of greens, even in the most deserving cases where it was clear that the qualifying use had taken place before application. I have no accurate figures of the numbers that have been affected, for which my hon. Friend the Member for Pudsey asked, although I have various other figures. I will not delay the Committee by running through the information that I have if it is not exactly what my hon. Friend wants.

It would be wrong for the Bill to treat determination in such circumstances as a definitive indication of the status of the land. On the other hand, if an application was without any substance when determined before, as perhaps might be the case in High Peak, it would remain without any substance if remade under clause 15. Indeed, depending on the circumstances, it might not even be possible for the authority to entertain it again if nothing has changed and the application remains as hopeless as ever. I will want to reflect on the guidance, as my hon. Friend the Member for High Peak said. It is true that case law has been evolving rapidly in recent years; we hope that the outcome in the Trap Grounds case and the passage of the Bill will make the criteria clearer for all.

The Open Spaces Society has issued comprehensive guidance on the subject, entitled “Getting Greens Registered”. We will need to speak to the society and others about how updated guidance on these matters should best be provided. If my hon. Friend wants to write to me I shall be happy to discuss his ideas and the problems in his constituency, given his generally progressive attitude to town and village greens.

Tom Levitt (Labour, High Peak)

I am grateful to my hon. Friend. One of the problems of the guidance versus case law issue is that case law takes so long. The delay in waiting for case law to be decided means that the town green applications cannot be processed with the speed that anyone would want without the need for rushing. Does the Minister think that the net effect of the Bill—a swing towards guidance rather than case law—would reduce the present unnecessary waste of time between the application and the decision in some cases?

Jim Knight (Labour, South Dorset)

I certainly hope that developing the expertise of commons registration officers and authorities will make things easier. The Bill is a tidying-up process that largely repeats the 1965 Act. If I can further streamline things through guidance I will do so and perhaps we can discuss it.

In respect of amendments Nos. 46 and 47, the first proposed requirement of notifying the owner is a matter for regulations under clause 24, which we will develop and consult on in due course. The current regulations require the authority to notify the owner where known, to advertise the application and to place a notice on the land. We would expect the new regulations to contain something comparable.

The second and third proposed requirements—to consider whether the owner has taken reasonable steps to prevent qualifying use by local inhabitants and to consider whether the owner can show that users were informed throughout the relevant period that consent to such use was temporary and not intended to lead to permanent rights—are simply elements of what, by definition, the authority must do when it is considering whether the use as of right by local inhabitants has occurred for at least 20 years. Use as of right is without permission or secrecy. If the owner can show that he prevented the use or that he informed users throughout that their use was permissive, the application must fail.

On the basis that the amendments are unnecessary, I ask the hon. Member for South-East Cambridgeshire to ask leave to withdraw them.

The hon. Member for Ludlow asked a couple of questions to which I shall respond. In respect of section 31 of the Highways Act 1980, we concluded that it was unnecessary, and would not always be appropriate, to introduce the possibility for a landowner to declare that recreational use of his land is not as of right. A landowner who wants to continue to allow local people to use the land simply needs to communicate his permission clearly to them—for example, by putting prominent notices on the land which he maintains or periodically renews. The difficulty with substituting a paper procedure is that people may be unaware that their use of the land as of right is challenged. That is unsatisfactory when 20 years’ use as of right has already taken place and it is important for any challenge to as-of-right use to be overt so that people recognise it as such and, if appropriate, take action to secure registration of the land before the two-year period of grace elapses.

For that reason, clause 15 does not treat the mere giving of permission as enough to end as-of-right use. It would be unfair if an apparently welcoming action taken after a long period of as-of-right use were able to cancel out long-established as-of-right use in that way and thereby prevent registration of the land.

Incidentally, although I cannot comment on specific cases, I do not believe that a provision similar to section 31(6) of the Highways Act 1980 would be of any assistance when 20 years’ use had already accumulated because that section can be used to prevent the presumed dedication of rights of way only when 20 years’ use has not already taken place.

I shall write to the hon. Member for Ludlow about the Glebe land that he referred to.

In respect of applications to register land as a green infringing the owner’s human rights, we do not accept that that is so, but the Judicial Committee of the other place is considering that issue in the Trap Grounds case.

James Paice (Conservative, South East Cambridgeshire)

On a point of order, Miss Begg. As we have changed the structure of the debate, will I have another opportunity to speak?

Anne Begg (Labour, Aberdeen South)

I was going to offer you that opportunity.

James Paice (Conservative, South East Cambridgeshire)

Thank you, Miss Begg. In that case I do not need to intervene on the Minister.

Jim Knight (Labour, South Dorset)

As we have had a thorough debate, I hope that it will be taken as a stand part debate.

James Paice (Conservative, South East Cambridgeshire)

I appreciate your tolerance, Miss Begg.

I am grateful for various things that the Minister said. Starting at the end, he talked about amendments Nos. 46 and 47 and I am grateful for his explanation that owners will be notified and that whether an owner has sought to prevent or has given permission would both nullify the as-of-right clause. I confess that I was not aware of that definition of “as of right”, so I accept that the amendments are unnecessary, but the points are important and it is worth having them on the record.

On the earlier amendments and planning consent, I confess that I am still slightly concerned about the Minister’s response. I appreciate the technical distinction between a judgment on policy and a judgment on law, but the Government will have a serious problem with the present situation. The Minister kindly said that he would reflect on the matter, but he may want to reflect on the developments that will be hit by the measure now and he might want to consider an amendment to exempt those on which construction is already in process.

Jim Knight (Labour, South Dorset)

If the hon. Gentleman is aware of any such circumstances or any are made known to him and he communicates them to me, that would help me when considering the matter.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister and I will certainly try to do that, with the agreement of those who approach me.

The Minister said that much of the provision is just re-enshrining previous legislation, but there are some twists that change it slightly and it is important that people who will be caught by the measure should be exempted. It is fair enough that anyone who applies for planning consent in future should be covered by the legislation and I accept the Minister’s point, but those who have already received it and believe that everything is going forward need an opportunity to make representations.

I heard what the Minister and other hon. Members said about the period of one to five years, but I still think that people could go a bit quicker than has been suggested, although I have not considered the Trap Grounds issue, which I accept as a reason for needing a fair period.

Unusually, I found myself at odds with the hon. Member for Sherwood, although that will not surprise him. I fully recognise that the world has moved on. If he was implying that I was defending property rights as they might have existed 50 years ago, he is living in a different world. I certainly am not doing that, norwas I.

Paddy Tipping (Labour, Sherwood)

Some of the discussions reminded me of the debates about enclosures, so we are talking about centuries ago, not 50 years ago.

James Paice (Conservative, South East Cambridgeshire)

I was not a Member of the House then, so I shall have to bow to the hon. Gentleman’s memory, although I think that he is straining the point. As I made clear at the outset of my remarks, I wholly support the principle of registering village greens. However, owners should not be caught unwittingly by the legislation, which could, in effect, nullify the value of an asset.

My only other point relates to the Minister’s intervention on me on amendment No. 43. He said that the fact that subsection (5)(b) depends on subsection (5)(a)—that is, the end of paragraph (a) ends with “and”—makes it subsequent. Having spent a few minutes reading the provisions, but like him not having a legal background, I am not entirely convinced that he is right. His assertion that subsection (5)(b) is dependent on subsection (5)(a) is of course correct, but subsection (5)(a) refers to prohibition under subsection (4), which refers to prohibition

“by reason of any enactment.”

Logically, therefore, subsection (5)(b) refers to prohibition by reason of an enactment.

My understanding of the Minister’s response to amendment No. 43 is that landowners who have previously done nothing should not suddenly be able to put up a welcome board to avoid registration. I entirely agree that that should not be permissible, but that is not how I read subsection (5), linking it to subsections (2) and (4). There is no reference to subsequent and the prohibition appears to refer only to an enactment. Unless I am wildly wrong, I do not think that an enactment means an action by a private individual.

Jim Knight (Labour, South Dorset)

We might need to get our collective non-legal heads together and work out the wiring of the provisions. To go back through all the stages, subsection (4) says:

“In determining the period of 20 years”.

To my mind, that informs the subsequent nature of subsection (4). Subsection (5)(b) is free-standing from subsection (5)(a), but both are subject to the words

“in a case where the condition in subsection (2)(a) is satisfied”.

We could probably have this debate for some time and we might want to return to it on Report, but in the meantime we might want to have a chat and clarify it for ourselves.

James Paice (Conservative, South East Cambridgeshire)

That may well be necessary, especially as the Minister just said that subsection (5)(b) is free-standing from subsection (5)(a), whereas I thought that he told me earlier that it was dependent on paragraph (a), which indeed ends with the word “and”, which suggests that paragraph (b) is not free-standing. I am happy to have the discussion that the Minister suggests.

To conclude, I have attempted to remove too much of an element of retrospection. That is why I talked about planning consent, particularly involving developments that are already under way, and why I sought to remove subsection (5)(b), which strikes me as a retrospective provision. It seems odd that only a few months ago the Minister and I were debating retrospection about a different form of access. He was arguing against my case because it was retrospective, but today the boot is on the other foot. He is trying to do things retrospectively that I believe he should not.

We have had a good debate, and I am grateful to the Minister for his offer to reconsider certain aspects and explain others.

Clause 16

Paddy Tipping (Labour, Sherwood)

I beg to move amendment No. 32, in page 8, line 32, leave out subsection (2).

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to discuss the following amendments:

No. 71, in clause 16, page 8, line 33, at end insert—

‘(2A) If an application for release land of not more than200 square metres is made less than 10 years after an application has been granted for the release of other land within a distance of 50 metres of it, then, regardless of any change of ownership that may have occurred during that period, the application must include a proposal under subsection (3).'.

No. 33, in clause 16, page 8, line 37, leave out subsection (4).

No. 72, in clause 16, page 8, line 41, after ‘green', insert

‘or already be any other public open space;

(aa) the replacement land is not less in area and is equally advantageous to the persons (if any) entitled to rights of common or other rights, and to the public;'.

No. 70, in clause 16, page 9, line 6, at end insert—

‘(e) whether the alternative land is no less in area and equally advantageous as the land taken'.

Paddy Tipping (Labour, Sherwood)

I shall use my time constructively. Clause 16 deals with the deregistration and exchange of common land. Amendment No. 32, in my name and that of my hon. Friend the Member for Stroud, and the other amendments all reflect the concern of the Committee that pieces of land of less than 200 sq m may not be properly protected.

The clause gives a permissive power of replacement, but under the amendments, when an exchange of land is to take place, whatever its size, new common land should be put in place. My feeling—I am delighted that it is shared by other members of the Committee—is that common land is mostly not large areas of open countryside but small, fragmented spaces. If land of less than 200 sq m is not replaced, we will see the gradual eating away of commons. That is the purpose of the amendments. I hope that the Minister will consider them.

David Drew (Labour, Stroud)

My hon. Friend, in sharing the amendments with me, has given me even less time to speak to them than he had. I shall be commendably brief.

Amendments Nos. 71, 72 and 70, in which mine is the lead name, are complementary to my hon. Friend’s inasmuch as they seek to clarify which bits of land may be brought forward for exchange. I shall deal with each amendment in turn; they seek to stiffen the resolve of those who wish to see in the Bill some protection for smaller pieces of land.

Amendment No. 71 would prevent the nibbling away of pieces of land. Areas of less than 200 sq m should not be taken without replacement.

Standing Committee D

Clause16

Anne Begg (Labour, Aberdeen South)

I remind the Committee that with this we arediscussing the following amendments: No. 71, in clause 16, page 8, line33, at end insert—

‘(2A) Ifan application for release land of not more than 200 square metres ismade less than 10 years after an application has been granted for therelease of other land within a distance of 50 metres of it, then,regardless of any change of ownership that may have occurred duringthat period, the application must include a proposal under subsection(3).'.

No.33, in clause 16, page 8, line 37, leave out subsection(4).

No. 72, inclause 16, page 8, line 41, after ‘green',insert

‘or already be any otherpublic open space;

(aa) thereplacement land is not less in area and is equally advantageous to thepersons (if any) entitled to rights of common or other rights, and tothepublic;'.

No.70, in clause 16, page 9, line 6, at endinsert—

‘(e) whether thealternative land is no less in area and equally advantageous as thelandtaken'.

David Drew (Labour, Stroud)

I shall take up where Ileft off. Having chatted to my hon. Friend the Whip, I shall be evenbriefer than Ithought.

The point ofthe amendments is to sort out the issue of the possible exchange ofland. Amendment No. 71 would ensure that there is no de minimis size ofland resulting in land being nibbled away. It would also impose a timeconstraint restricting the degree to which land can be released insuccessive periods, so that we do not see it gone beforelong.

Amendment No.72 is straightforward. It would make it clear that it is wrong toprovide a piece of so-called open space as an alternative to theconstituted village green or common land. I am sure that that ruse hasbeen played on all hon. Members: someone offers the village what wasalready a piece of open space on the grounds that it is secured forever and a day, when the village is losing a piece of common land thatis just as valuable or even more valuable. I hope that that amendmentis clear.

I particularly want theMinister to respond to amendment No. 70. It would guarantee that avoluntary exchange of common land or a village green would be subjectto the same test as compulsorily purchased land. Section 19(1)(a) ofthe Acquisition of Land Act 1981 requires that land given in exchangemust be no less in area than the other land and must be “equallyadvantageous” to anypersons

“entitled torights of common or other rights, and to thepublic,”

who now have aright to walk on all commons under the Countryside and Rights of WayAct 2000.

Theamendment would ensure that what is received is no worse than what isgiven, provide a clear yardstick for exchanges as well as compulsorypurchase and obtain a subsequent guarantee from the Minister that itwould apply to the de-registration, exchange and registration of landtaking the place of the land being lost. It is very clear, and I knowthat the Minister will be dying to accept theamendments.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

We, too,support the amendments. Village and town greens are precious to thosecommunities able to enjoy them. We know of many towns and villages thatwould like to have a village green for all the benefits that accruefrom them but do not have one. We often see encroachment on thoseprecious areas of land, sometimes in small bites. Theamendments’ strength is that they address that. The loss of avery small piece of a green is an important matter for thecommunity.

The hon.Members who tabled the amendments have made their points, so I will notrepeat them, but it is up to the Minister to respond to the amendmentsas positively as he can. The communities affected by such problemswould hold him in the highest esteem if he let his defences down ashade and let somebody slip the quicker ball through and get aresult.

Jim Knight (Labour, South Dorset)

I recall that during debates on theNatural Environment and Rural Communities Bill the hon. Gentlemanpromised that I would be held in the highest esteem in respect of somerace between horses, men and all sorts of things—it got himnowhere theneither.

I listenedcarefully to my hon. Friends. I said that I always pay close attentionto my hon. Friend the Member for Sherwood (Paddy Tipping); I try to dothe same for my hon. Friend the Member for Stroud (Mr. Drew) as well,although sometimes he does not make that as easy. My hon. Friends makeimportant points and I support the intentions behind their amendments.

However, I shallresist the amendments. Clause 16 strikes the right balance forflexibility, and I shall take time to persuade my hon. Friends and thehon. Member for Brecon and Radnorshire (Mr. Williams) that we have gotit right. If the proposed release land has an area of more than 200 sqm, replacement land must be offered—no ifs or buts. That isclear. It would apply whenever release land had an area greater than,say, 20 m by 10 m. However, I know that my hon. Friends and the hon.Gentleman are concerned that small areas of land would be eaten away.They want to prevent nibbling, as my hon. Friend the Member for Stroudput it.

Could the status of smaller areas of land be swept away as unimportant? Far from it. Unless the applicant proposes replacement land, there is an absolute duty on the national authority, under subsection (7), to have particular regard to the extent to which the absence of replacement land would be prejudicial to any of the interests in the land. The authority must think about the property rights of the commoners or others, the interestsof the neighbourhood and the public interest in all senses of thephrase, including nature conservation, landscape conservation,protection of public rights of access and protection of archaeological remains or other historic features.

That list is prettyformidable. In the vast majority of cases, when the area of proposedrelease land is less than 200 sq m, replacement land of a comparablesize or quality will need to be provided if the proposal is to beapproved. A case of deregistration without exchange being approvedwould be truly exceptional, but we do not want to rule out thepossibility.

I shallgive an example. Suppose an area of common or green were landlocked byhouses and no land nearby could be used as replacement land. Let ussuppose that there was a proposal to take a very small proportion ofthe land to facilitate, shall we say, disabled access to some adjoiningcommunity facility, and that that proposal was supported overwhelminglyby local people because it really made sense. Although such a casewould be exceptional, we would not want it to be impossible for us toapprove that application because of what was instatute.

What of theother issues raised by the amendments? Should there be a requirement orstatutory expectation that replacement land should be at least as largeas the release land, or equally advantageous to the various users ofit? We do not think so, for the same reason. Of course, it would beexceptional for the replacement land to be smaller, but we do not wantto rule out the possibility altogether. Such a proposal could provide abetter deal for the commoners and the public. Perhaps the release landwould be inaccessible and remote, while the slightly smallerreplacement land was on people’s doorstep, but had not hithertobeen available to them. In such circumstances, we should not be forcedto turn down an application because ofstatutes.

We resistthe “equally advantageous” formulation simply because itcould well be interpreted as meaning that the replacement land had tobe equally advantageous in respect of every one of the interests setout in clause 16(6), which is a much extended list of the issues towhich the national authority must have regard when an exchange isproposed. Currently, the national authority is concerned only withwhether an exchange is fair to the private interests involved;subsection (6) would also include the public interest.

My hon. Friend the Member forStroud mentioned the Acquisition of Land Act 1981. He was right to saythat in the case he mentioned replacement land due to a compulsorypurchase order would have to be equally advantageous to any commoners,other legal right holders and the public. This is the closestcomparable example. However, the deregistration and exchange provisionsin clause 16 involve considering the impact of proposals on a far widerset of interests than even those in that legislation, includingthe

“interests of theneighbourhood...nature conservation...the conservation of thelandscape...the protection of public rights of access...andthe protection of archeological remains and features of historicinterest.”

There is adifference, and there would be a potential legal problem if we were toopen up the possibility that all those interests must be equally servedby the exchange land.

David Drew (Labour, Stroud)

I am very pleased that subsection (8) defines thepublic interest. The problem is that we do not define what we mean bythe “interests of the neighbourhood” and how that wouldbe reflected. With the best will in the world, that is where theconflict is most likely to occur. For example, a group of people mightsee the exchange as somewhat less advantageous, but the landowner andperhaps a larger authority, which could have already granted planningpermission, might say, “We think this should take place”.How do we measure those conflicting interests? Perhaps that issueshould be taken on board.

Jim Knight (Labour, South Dorset)

My hon. Friend raises an interesting point aboutthe definition of the “interests of the neighbourhood”.Clearly, it is up to the registration authority to make decisions on acase-by-case basis as to whether an exchange is reasonable and whetherit balances all those interests up. As things stand, it will have todefine the “interests of the neighbourhood”. I shallreflect on whether we need to flesh that out a little in some form forhim. I hope that on the basis of my explanations, my hon. Friends, andhon. Members, will not press their amendments to aDivision.

Paddy Tipping (Labour, Sherwood)

I am grateful for theMinister’s kind opening remarks for my hon. Friend the Memberfor Stroud and me. As always, they were followed by a“however”. The “however” that I heard theMinister discuss was that we would be talking about replacement landsave in the most exceptional circumstances. On that basis, and the factthat it is on the record that most of the sites will be replaced in asimilar way, I beg to ask leave to withdraw the amendment.

Clause17

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I beg to move amendment No. 97, in clause 17,page 9, line 37, at endinsert—

‘(c) to ensure thatland is contiguous with or accessible to the holder ofrights.'.

Theamendment relates to deregistration and exchange orders, but on aslightly larger scale than the village and town greens items that wediscussed. The provision is more directly aimed at common land thatpeople have rights over and which from time to time will have to besurrendered in the public interest, for example when roads or otherpublic infrastructure are being built.

The Minister might say that theamendment would have been better directed at clause 16(6)(a), whichsays,

“the interests ofpersons having rights in relation to, or occupying, the release land(and in particular persons exercising rights of common overit)”.

We would like theprovision to be more explicit, and to say that exchange land should becontiguous to the land over which the rights are currently exercisedand that it should also be accessible. There are instances where landhas been given up and the land that has been offered in exchange isdistant from the existing commons, and is sometimes even divided fromit by a new fenced road.

The recent example that I havebeen given relates to the dualling of the Heads of the Valleys road,which links the south Wales valleys. It goes across the heads of thevalleys and has been a dangerous road for some time. It has been athree-lane road and has been subject to many accidents. Now, thankgoodness, as a result of the intervention of the Welsh Assembly, it isbecoming a dualled road, but land has been taken up to achieve that.Commoners are not happy that some of the land offered to them has beendistant from where they exercise their rights at the moment; indeed,sometimes it has been on the wrong side of the road, so tospeak.

We would like,in clause 16 or clause 17, a commitment that when that exchange ismade, people with rights on the common can continue to exercise thoserights easily, and do not have to go to exceptional lengths to do so. Ilook to the Minister to give us comfort on that point, because that isa real, practical problem faced regularly bycommoners.

Jim Knight (Labour, South Dorset)

I think that in my response on the previous clauseI might have given the impression—in fact, explicitlysaid—that the commons registration authority would deal withmatters under clause 16, but it is, of course, the national authoritythat will do so, as is the case for clause17.

I hope that itwill be some reassurance to the hon. Member for Brecon and Radnorshirethat precisely the sort of considerations that he is talking about willbe taken into account by the national authority when determining anapplication for exchange under clause 16. As we saw in discussion onamendments to that clause—the hon. Gentleman mentioned clause16(6)—the national authority must have regard to various factorswhen determining an application. As he says, those factors include theinterests of commoners, so where an exchange relates to common landthat remains in agricultural use, the national authority will look verycarefully at whether the replacement land provides an adequatesubstitute for the commoners.

The hon. Gentleman’spoint about the road is important; it would be absurd if the locationof the replacement land meant shepherding sheep across a busy mainroad, but—I would not want to disappoint my hon. Friend theMember for Sherwood by failing to use a conjunction after being nice tosomeone—we need to retain some flexibility in determiningexchange applications.

For example, a piece ofreplacement land may be highly advantageous to the community as a placefor recreation, or may have the potential for promoting biodiversity,but because the replacement land was some distance from the common, itwould not be accessible to a registered holder of rights who, say,wanted to graziers two geese, even though those rights had not beenexercised since before the war. In those circumstances, it would beplain silly to refuse the application for the sake of those two geese.In short, we resist the amendment, but I offer the hon. Member forBrecon and Radnorshire the assurance that its purpose will be a coreconsideration for the nationalauthority.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

The Minister deals with Government Back Benchersand Liberal Democrat Members even-handedly, in terms of his use of butsand howevers. I listened to what he said, and I am pleased that hisresponse is now on record. Having had the satisfaction of hearing theMinister give that commitment, I beg to ask leave to withdraw theamendment.

Clause19

James Paice (Conservative, South East Cambridgeshire)

I beg tomove amendment No. 64, in clause 19, page 11, line 14, at endinsert—

‘(i) theextent of any land registered as common land as a town or village greensave for the purpose of adding only to the Commons Register land thatimmediately prior to the entry into force of the Commons RegistrationAct 1965 was common land pursuant to a Statute still in force at thedate hereof and provided the said land but for inadvertentnon-compliance with the requirement to register the said land under theCommons Registration Act 1965 has since continued uninterruptedlysubject to the same rights thereover and has remained common land tothis day and has been treated and used assuch;'.

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to discuss thefollowing: Amendment No. 35, in clause 19, page 11, line 15, leave outsub-paragraph(2)(b)(i).

AmendmentNo. 48, in clause 19, page 11, line 17, leave out subparagraph(2)(b)(ii).

Governmentamendment No.7.

Amendment No. 49,in clause 19, page 11, line 22, at endinsert—

‘(c) entriesresulting from fraudulent declarations by the owner of the rights atthe time ofregistration.'.

James Paice (Conservative, South East Cambridgeshire)

I suspect that when the Minister—or, moreparticularly, his officials—saw the amendment, their heartssank, not least because I think thatthey know its provenance.The amendment relatesto a debate that has been going on forsome considerable time between the Minister’s officials and aMr. Pumfrey with regard to Monken Hadley common. Mr. Pumfrey, who isobviously a learned gentleman, has corresponded with us all at greatlength, and he has been challenging officials about the situation. Therefore, I have tabled amendment No. 64, which has been drafted by Mr.Pumfrey. After reading it a few times, one realises that it does meansomething. It is, I am afraid, the language of law as we used tounderstand it, rather than the rather simple language in which I tendto draft my own amendments so that I can understand them.

The principle of the amendmentapplies where there is a piece of common land created by some otherstatute prior to 1965 and someone, in the phrase of the amendment, byinadvertent non-compliance forgot or omitted to register it under theCommons Registration Act 1965. There is a concern that that land wouldbe lost. The amendment would add to the facility for correction inclause 19 the opportunity to correct that sort of situation. I will notdetain the Committee by reading out what the Minister’sofficials have said to Mr. Pumfrey—no doubt the Minister will dothat himself, in so many words, in a few minutes.

There is an important pointhere, and I hope that the Minister will address it. What is the statusof a piece of land that was common by some other statute prior to 1965,but for whatever reason, was not registered? I am sure that allCommittee members would agree that it would be a great pity if thatland were lost as common land. I am looking for some explanation orreassurance from the Minister as to how that land can be kept as commonland if clause 19 is not amended in the way we propose. I look forwardto the Minister’sresponse.

AmendmentsNos. 48 and 49 are far more straightforward and simple because Idrafted them myself, and I am a simple man. They return to the issuethat I raised on Second Reading, and the Minister replied to myconcerns to some degree at that time. I make no apology for returningto these issues because they are very important, and fair play andjustice demand that we should examine them further.

I do not think that there isany real dispute about the fact that after 1965, a large number ofrights were registered that had no true validity in historical terms.They were considerably in excess of rights that people had previouslyexercised under the old levancy and couchancy rules, which weredesigned to relate a person’s common rights to the amount ofstock they could accommodate on their own land during the winterperiod. There were absurd situations where people who could accommodate10 or 20 head of stock during the winter on their own land wereregistering rights for several times that figure during the summer.That aspect is part of the picture.

There are also examples, and Ireferred to one from my constituency—needless to say, my localpress have tried to investigate this, but I have not given them anyfurther knowledge—concerning an allegation that someone hadregistered rights when he had no rights on the common prior to thatdebate at all. They were registered, and there have been no grounds forcorrection. Amendment No. 48 would simply delete from clause 19 thesentence that would prevent a correction being made if it had anyimpact on the right of common.

Amendment No. 49, on which Iam happy to take guidance if the drafting of the precise terminology isincorrect, creates the opportunity in what is intentionally a fairlynarrow situation for correction where entries have been made thatresulted from fraud. The Minister may ask how we could prove fraud and it would be for othersto come forward with the evidence to prove that someone who had claimedthe right had no justification for doing so. By using the word“fraudulent” in the amendment I have tried to narrow downsituations when countless people could say that this or that was notquite right. I understand the Government’s desire not to reopenthe registration issue because it is a can of worms and my right hon.Friend the Member for Penrith and The Border (David Maclean) told usthis morning what his officials said to him when he was the Ministerresponsible for such matters. It is not something to be entered intolightly. Nevertheless, there is a fundamental problem and fair playrequires that it should be addressed. The Government should not simplyshrug their shoulders and pretend that it is too difficult to deal withbecause that would do no one anyjustice.

In his replyto my Second Reading comments the Minister referred to stakeholders andthe National Farmers Union. It is true that the NFU is not in favour ofreopening the register, probably because a number of its members mightbe affected, but it is not true that it would apply to allstakeholders. The Country Land and Business Association, which I quotedearlier, is in favour and said so in its submission to the Committee.It is not a universal view among stakeholders that the matter shouldnot bereopened.

There is acase. I do not have the optimism of the hon. Member for Brecon andRadnorshire that a few charming words will convert the Ministerovernight, but then I am not as gullible as most Liberal Democrats.Nevertheless, I have made the point and I hope that the Ministerunderstands that there are some serious injustices, with ongoingimplications for management. For example, if all but one of the rightsholders of a common accurately registered the rights to which they wereentitled, but one massively over-registered, that could result inover-grazing, which the Bill is, in part, designed to address. If thereis no power to correct that registration, the consequences ofover-grazing and the management decisions that would have to be made,subject to later provisions in the Bill, would affect all rightsholders. They would all suffer because one person massivelyover-registered. That serious injustice should be addressed and that iswhat is behind theamendments.

Paddy Tipping (Labour, Sherwood)

I want to build on the point that the hon.Gentleman made that the registration process was flawed and that therewas injustice. I have no doubt about that. I would have liked to see abolder approach but clause 19 allows only minor corrections. Largeparcels of land throughout the country should have been registered buthave been left out. That is an injustice initself.

I want todraw the attention of the Minister and his officials—I know thatthey have been to Cumbria frequently to survey the scenethere—to an example that was provided to me by that excellentorganisation, the Friends of the Lake District, which worked extremelyhard in the other place to modify the Bill and has been involved in theissue of commonholders associations and how they are developed. Theydrew my attention to a piece of land at Thirlmere, some of which hasbeen registered as common land. Under the registration process the open fell was registered as common land, butsome of the common land, which was part of the landscape adjacent toit, had been planted and forested, so during the registration processit was not included on the register. There are strong feelings aboutthat. Forested land does not necessarily always remain forested. I ampleased with some of the Forestry Commission’s work to removewoodland and return landscape to its nativehabitat.

As it stands,clause 19(2)(b)(i) does not allow the amount of the land to beincreased at all. I followthe hon. Member for South-EastCambridgeshire(Mr. Paice) on this point. My amendment issimple;it would strike out that possibility and allow theregistration authority to increase the amount of common land. I knowthat this is a radical amendment to clause 19, which just allows forminor correction. Sometimes, amendments are called probing amendments,but I want to use mine as a prodding amendment to remind the Ministerand the people who follow our debate that injustices have been done inthe past and that land that should have been registered—it hadall the attributes for registration—should have beenincluded.

I wouldlike to see a greater proportion of common land and common rightsacross the country. The Bill is currently designed to minimise that.Rather than probe the Minister, I want to prod him and remind him ofthe heritage and tradition in thisrespect.

David Maclean (Conservative, Penrith and The Border)

I support theprinciple of the amendment moved bymy hon. Friend the Memberfor South-East Cambridgeshire. I have not had the privilege of massivecorrespondence from William Pumfrey, MA Cantab., so I do not wish tosupport the exact wording of his amendment. However, I hope that theMinister considers whether on Report we might get an all-partyamendment to clause 19(3). It refers to two reasons why the registermay be corrected when itsays:

“Referencesin this section to a mistakeinclude—

(a) amistaken omission;and

(b) un unclear orambiguousdescription.”

I hopethat the Minister will say that he will add corrections to the 1965Act, because there are a large number of small but important injusticesarising from it. We cannot have the explanation that the 1965 Act wasdefinitive, is set in stone and can never be changedagain.

The Ministerhas the privilege of being on an extraordinary Committee. When I was aHome Office Minister and passed many wonderful bits of legislation, theoldest Act that I ever managed to amend was something relating to the18th century. If colleagues turn to pages 44 and 45 of theBill—sexy schedule 6, which deals with repeals andamendments—they will see at the bottom of page 45 that theMinister is repealing the whole of the Commons Act 1285. I suspect thatthat sets a ministerial precedent in Committee: no one has ever amendedsuch an ancient Act. If the 1285 Act, which was set in concrete or granite for eight centuries, can be repealed bythe Minister, I am sure that a few tweaks to the 1965 Act may beappropriate.

Lookingat the other Acts that are being amended—including the repeal ofsection 21 of the Metropolitan Commons Act 1866 and section 2 of theGifts for Churches Act 1811—I do not think that the Ministercould say, “I’m sorry, we can’t touch the 1965Act. It was the definitive Act, the bible of commonslegislation.” We know that mistakes have been made.

The hon. Member for Sherwoodis right to quote some examples in Cumbria. There are numerous otherexamples. It is not a mega, mega injustice; it is not that all the 1965Act is invalidated, but mistakes were made in all innocence andhonesty. We should have the ability now, after due process, to correctthem, not by arbitrary changing of the register but by going throughthe various processes in the Act and correcting registration mistakesmade in 1965.

I donot believe that the Minister can say that clause 19(3) deals with thatissue. I hope that he will accept an amendment on Report thatspecifically mentions the 1965 Act in much simpler language than in theesteemed William Pumfrey’s amendment, and then we can deal withinjustices done in1965.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I agreeentirely with what has just been said. Years ago, I used to practisethe area of law under the 1965 Act, and I came across mistakes time andagain—not of my own doing, I hasten to say. I would often findthat rights had been registered throughout southern Gwynedd by a wellheeled landowner from 100 miles away. To correct those mistakes, thosewho were suffering as a direct result would have to go to the HighCourt. That was the greatest mistake in thatAct.

We have heard inprevious discussions that the 1965 Act was flawed. By and large, it wasnot a bad Act. It was a bit too complicated in parts, but the bigmistake was that it was left to those who were suffering to try tocorrect entries that were patently wrong for whatever reason, whetherby mistake or fraud. They would go to the registration authority, but,ultimately, the answer would be, “Take it to the HighCourt.” Tenant farmers from north Wales could not even considerthat, despite the rights being an integral part of their farmingoperation.

Imentioned in last week’s debate that I hoped that the Bill wouldallow for those corrections to be made without reference to litigation,as has just been suggested by the right hon. Gentleman. I did not get afull response at that stage—nor, to be fair, was I expectingone—but it will be a grave omission in this Bill if we do not atleast open the door to resolving the most blatant of the mistakesand/or wrong registrations of the past. As he said, we are not talkingabout root-and-branch repeal of the 1965 Act, but merely of an avenueto correct what needs to becorrected.

I put thisas strongly as I can. It is clear that these things must be corrected.There are numerous examples in my own vicinity of people who aresuffering as a direct result of wrong registrations and who feel thatthe value of their registration rights has been undermined. Worse stillare those cases that, strictly speaking, involve not an absentee landlord but someone from afarm who might have registered 10 times as much land as he was entitledto, and whose over-grazing is directly causing difficulties in the mostpersonal way to those small tenant farmers who rely on that grazingland in the spring and summer. In terms of the environment, we are allaffected, because even if the tenant farmers send up fewer sheep thanthey should, they find that most of the pasture has been taken over bythe stock of the wrongly registered dominant tenement. Therefore, interms of the environment and justice and to get the Bill right, I urgethe Minister to accept the course that has been suggested to him. Icertainly would join on an all-party basis to correct this omission inthe Bill.

I dare saythat none of us were in Parliament when the 1965 Act was passed. I donot know how the omissions got into that Act, but, here and now, we arecreating law and are capable of correcting the omissions. We should dothat, as we have to consider all eventualities to make good law. I amnot saying for one moment that there will be an awful flood ofcorrections, but there will be several of them. There is the Cumbrianexperience, and I have spoken briefly about north Wales, mid-Wales andother places. Undoubtedly, corrections will have to be made, but theregistration authority will be able to look carefully at each and everyone, and I hope that eventually the situation will be dulycorrected.

Subsection (2)(b)(i) says ineffect that the commons registration authority may not amend itsregister if it will in any way affect

“the extent of any landregistered as common land or as a town or villagegreen”.

By that, I readthat the only way in which an amendment can be made is, again, withreference to the High Court. Again, that is a mistake. If the matter islive and the extent of any land registered as common land or villagegreen is genuinely an issue, we should consider a means of dealing withit, rather than rely on the High Court every time.

As a lawyer, I know thatmaking an application to the High Court does not come cheap. I hopethat I shall not be struck off for saying that but, on a serious point,it is no use saying to people, “You can always take thatavenue.” It is available to only a few. If we are legislatingproperly, we must legislate for everyone and all eventualities. If myreading is correct, must reference be made to the High Court? I thinkthat I am right, but I may be wrong. No doubt, the Minister will put meright if necessary.

Philip Dunne (Conservative, Ludlow)

I support the tenor of theamendments. I have a couple of observations that I do not think otherhon. Members have made. On Second Reading, I referred to the registrarin Shropshire who told me that he thinks there is as much unregisteredas registered common land. The prospect of mistakes remains, and aflexible system that, without the necessity of approaching the HighCourt, allows errors and omissions to be corrected makes eminentsense.

I apologisefor referring to my previous remarks, but the issue was brought home tome by the consequences of the mapping exercise that the Department is undertaking through the Rural Payments Agency. Most farms have been toldthat the maps that they have supplied are incorrect. It is highlylikely that the maps covering common lands will not conform to theDepartment’s expectations, and as a result of more detaileddigitised mapping, a number of errors are likely to arise in existingregistered common land. From a practical perspective, it is importantthat there is an opportunity to make corrections to the registeredcommon land boundaries.

My final point, which is aboutfraudulent rights, also picks up on one of the consequences of thesingle farm payment scheme that we in England are obliged to undertake.Wales is relieved of it. All parties with a claim to a piece of landmust agree about each other’s claims before the Rural PaymentsAgency will sanction payment—when it eventually gets round tomaking payments. As a result of the multiplicity of claims to commonland, if somebody has fraudulently claimed a right or they believe thatthey have a right, they can frustrate payment of claims to those whohave entitlements not only to common land, but to their entire holding.They can potentially frustrate the payment of a large number of singlefarm payments. A flexible system that allows for corrections to bedealt with expeditiously isimportant.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

With due respect to the right hon. Member for Penrith and The Border, the purpose of this Bill, if I understand it correctly, is to repeal the whole of the 1965 Act. It is a question of amending not the Act, but some of the entries in the register, which he addresses. It is correct to do so, because obvious and glaring errors have been entered into the registers. The hon. Member for South-East Cambridgeshire cites an instance of an individual who would have registered grossly more than his rights in relation to a common. However, let me give the example of two contiguous commons that are both in my constituency and in a neighbouring constituency. On one, the commoners got together and decided to register—I think—10 sheep to the acre but, on the adjoining common, the commoners got together and decided to register one sheep to the acre. Not surprisingly, the sheep moved from one common to the other.

I wanted the opportunity to mention a right of common that has not so far been discussed. My French is not good, but my Norman French is even worse, and I am told that the right is known as a right pour cause de vicinage—meaning the right for sheep to stray from one common to another. If there were ever an example of that right, it is the sheep that stray from the great forest of Brecknock to the manor of Mawr Penderyn, where the two registrations that I mentioned took place.

There are such instances, and I am sure that my hon. Friends and I would support any cross-party amendment that could persuade the Minister that obvious registration errors should be dealt with more efficiently and effectively than is allowed for in the Bill. On that basis, we support the amendment and look forward to Report when we can perhaps effect a much more permanent resolution to the problem.

Jim Knight (Labour, South Dorset)

Before moving to the meat of the debate, I shall speak to Government amendment No. 7 and not dwell unduly on accretion and diluvion. In essence, the amendment enables the registers to be updated to take account of natural variations in the boundaries alongside rivers, lakes, or tidal waters.

On the more substantive issues, amendment No. 64 is the one that has been devised by Mr. Pumfrey. I have some sympathy with the amendment and the individual in that case, and I will genuinely reflect on what has been said. However, for now, I am unable to accept the amendment and I shall endeavour to explain why.

Undoubtedly, some common land and some greens were not registered under the 1965 Act. Often, people did not realise that there was an opportunity—indeed, a requirement—to register, and it was soon too late to do so, because that Act sought to create a definitive register, and its main sanction to compel the registration of commons, including those made by statute as in this case, was that failure to register before the cut-off meant that the land would not be common land. That is how this circumstance came about, and I understand that the amendment would afford a second chance in relation to land that was once undoubtedly common land, because it was so designated in an Act of Parliament. On first glance that seems reasonable, but it poses a difficulty. The 1965 Act provided that unregistered land was deemed not to be common land, and the view of the courts is that the Act trumps any preceding provision in another Act. So land may be designated as common land but, in our view, it is no longer so, and it would be difficult to provide for its registration now, when it is not what it claims to be.

The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) speaks with some authority on such matters, and I need to take his thoughts seriously, because there is an opportunity to look at matters afresh and not necessarily accept history. My understanding, however, is that if owners of such land wish to have it registered under the Bill, they could create a right of common over the land in favour of another person and secure its registration under clause 6. Alternatively they could, as owner, apply for registration of the land as a green under clause 15(7). So there are one or two options to right wrongs, as long as owners wish to do so; all hope is not lost. However, in the case of Monken Hadley common, I gather that the trustees do not believe that their powers are sufficient for that purpose, which gives them a particular problem. I will have to reflect on whether I wish to grasp the elegant solution offered by the right hon. Member for Penrith and The Border. I take great pride in taking this Bill forward, and I suspect that his solution is a little too broad.

I have concerns about amendments Nos. 35, 48 and 49. We accept that there were flaws in the 1965 Act. Land and rights were registered that should not have been, and vice versa.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

It seems to me that the real flaw in the 1965 registrations was that somebody claiming a right could put forward their claim without any evidence, and people who disputed that application had to prove that it was incorrect. That is why these errors have been included; often, people did not want to object to an application for an entry on the register.

Jim Knight (Labour, South Dorset)

I am sure that that may be the case, but the fundamental question is that while one amendment wants us to include land that was missed out, another wants to exclude land that was put in, and similarly with rights.

The Committee—and ultimately Parliament—has to take a view on whether we want to try to get all the wrongs righted, and open the can of worms that the right hon. Member for Penrith and The Border referred to, or whether we want to move on 40 years after the date. I have concerns about reopening the can of worms relating to what are registered rights and what is registered land. We might reopen all sorts of claims, and all sorts of valuations. We are discussing things that are bought and sold, and the value of those rights and that land would be affected. There would be disputes. I am sure we would create a lot of business for the former colleagues of the hon. Member for Meirionnydd Nant Conwy, but I am unsure whether that is the best motivation for doing this.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am not particularly rising to that bait. Schedule 2 addresses the rectification of mistakes under the 1965 Act. In it, we cater for wasteland of a manor and other land wrongly registered—common land, town land and so forth. We deal with ownership and registration per se, but we do not deal with rectification of rights in respect of grazing and so forth. That is the flaw. The rest of the schedule is good, but we have not dealt with this vacuum.

Jim Knight (Labour, South Dorset)

I will reflect on the points made in the debate, and, prior to Report, I would very much welcome the thoughts of Members on whether it is possible to frame legislation in a way that sufficiently closely defines it to ensure that we do not open a can of worms—so that we can define clear mistakes without then including a bunch of other mistakes. I do not think that anyone involved in the consultation did not want us just to be able to get on with creating a workable system.

David Maclean (Conservative, Penrith and The Border)

May I press the Minister slightly on that point? It is difficult for us as the Opposition and for minor parties to draft technical amendments. However, if I understand the Minister correctly, he is saying that his officials will work with us on a more narrowly defined range of amendments to the 1965 Act. I accept that sticking into subsection (3) a reference to any mistake in the 1965 Act would be far too wide, but if the Minister is looking at some of the suggested issues on grazing, the hon. Members for Brecon and Radnorshire and for Meirionnydd Nant Conwy have made some points. If officials of all parties would co-operate with us to create a more narrowly defined set of amendments, we might be able to do some business. Is that the assurance that the Minister is giving us?

Jim Knight (Labour, South Dorset)

I am not making any promises. I am sharing my problem with the Committee. I have some sympathy for Mr. Pumfrey and with some of the points that have been made but, as things stand, I do not see a way forward without opening a can of worms. If hon. Members want to meet me and officials during the next couple of weeks prior to Report to discuss their thoughts on how it might be done, I will be happy to do so. I will also let them know the conclusion of my thinking on the matter before then, so that they will have time to make their own amendments if they choose and if the circumstances require it. I could talk about the amendments at some length, but I think that, on that basis, it is fair to ask the hon. Member for South-East Cambridgeshire whether he is happy to withdraw them.

James Paice (Conservative, South East Cambridgeshire)

I thank the Minister and hon. Members from all parties who have spoken on the amendments and who are largely in support of their thesis, if not always in support of the precise terminology. I am grateful to the Minister for the generous invitation at the end of his remarks. It is what we have come to expect of him.

I am sure that there must be a way. I feel quite strongly that simply to leave all the errors and not to reopen the issue is wrong. It must be addressed. If it can be done in a relatively narrow way, we all have a responsibility to try to find that way. As I said in my opening remarks, it is in the interests of justice—justice for the common land users of unregistered land and the rights owners who correctly registered their rights and are disadvantaged by those who incorrectly registered them. Justice requires us to exercise as much effort as we can to find a solution.

I am grateful to the Minister for his offer. I look forward to those discussions and assume that his office will be in contact with all of us to arrange them. I beg to ask leave to withdraw the amendment.

Clause 24

Jim Knight (Labour, South Dorset)

I beg to move amendment No. 8, in clause 24, page 14, line 14, leave out ‘particular' and insert ‘description of'.

Amendment No. 8 relates to the power in clause 24 to make regulations regarding applications under part 1. Subsection (7)(a) will enable regulations to make provision for the appointment of persons from a panel to deal with particular applications. The amendment will ensure that regulations can assign appointed persons to deal with a class of applications rather than individual applications. For example, the Government might wish to provide that all applications under schedule 2 to de-register wrongly registered common land must be referred to a person appointed from the panel. That would ensure that the sort of legally and factually complex issues likely to arise in such cases would be dealt with by a suitably experienced and qualified person.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I return to the issue that was discussed in great detail in the other place: how the panel might be established under the Bill. Is it a better solution for dealing with applications of the type that we have discussed than having commons commissioners do that or establishing a group of people who I think were termed “inspectors” in the other place?

A point has been put to me by the commons registrations officer in Powys. We have indicated that some mistakes were made in respect of the 1965 Act, but a huge amount of land was registered in Powys—probably 13 per cent. of all the common land in England and Wales. None of the decisions were ever challenged in any way. The hon. Member for Meirionnydd Nant Conwy might say that the reason was the high cost that could have been borne by the person making the challenge. Nevertheless, the decisions were accepted by the people involved. The issue that has been put to me is that we should have some form of tribunal or statutory decision-making process to give people confidence that there is the necessary objectivity and clarity in these contentious issues.

I am told that a tribunals Bill did not complete its passage and did not become legislation. It would have been an appropriate vehicle to set up a proper tribunal for these purposes. The other suggestion made to me was that we could have something along the lines of the existing agricultural tribunals. This might seem a small issue to the Minister, but it is about confidence for those who own commons or who have rights on them, and for the public who seek to enjoy them and to promote nature conservation, archaeology and all the other issues on which we have put so much emphasis today.

I suspect that the Minister will reject what I have said. I can see from the expression on his face that he is conjuring up the words that will let me down gently, but this is a matter of great concern. Although proposals were resisted by the Minister in the other place, the Minister who is present in our Committee has an opportunity to say that there will be a statutory form or a statutory body to deal with this matter, rather than its being dealt with by the seemingly ad hoc type of organisation referred to in the Bill.

Jim Knight (Labour, South Dorset)

The clause gives the national authority powers to make regulations regarding applications to amend registers of common land, and town or village greens made under part 1. We are discussing subsection (7) in particular. My understanding of what the hon. Gentleman just said is that in essence the question is why we are getting rid of the commons commissioners, who, to some extent, currently have an authority. They have a certain amount of competence, so he wants to know why we want to get rid of them.

The commissioners were established under the 1965 Act to determine disputed initial registrations under that Act. Commissioners had to be lawyers of seven years’ standing. I do not criticise that decision, or lawyers or those individuals for the job they have done. We expect that most applications under part 1 of the Bill will be straightforward and well within the capacity of registration authorities advised by the likes of Mrs. Griffiths. Authorities already deal with all applications for amendment to the registers under the 1965 Act.

Where applications raise particularly difficult matters of law or fact, we have made provision for them to be determined by an independent panel inspector. The amendment that we have just discussed would allow referral to particular individuals. Unlike commissioners, panel inspectors may be qualified because of their knowledge and experience, or technical understanding of agricultural practice, rather than their legal skills. That will add value over what happens at present, when the commissioners are simply there by virtue of their legal background. On that basis, I hope that the Committee will agree to the clause, as amended, standing part of the Bill.

Clause 26

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 50, in page 15, line 5, leave out ‘association' and insert ‘council'.

It is a challenge to know how to introduce the amendment. I would be quite happy if the Minister said that he would be happy to accept it, and we could move on, because it has huge support, which I will describe. The amendment is logical and sensible and I look forward to listening to any reason that the Minister might have to oppose it. It goes without saying that were it to be approved, there would be a large number of consequential amendments and I hope that we will not waste time arguing about that. We are at the principal point at which the term to be applied to the new statutory bodies needs to be considered.

As the Committee and the Minister are aware—the Minister made the point in his previous comments on Second Reading, in the Committee and outside the House—it is expected that a very large number of voluntary commons associations will remain in existence. Indeed, the Minister said that there will be many occasions on which groups of them will come together to form a statutory body, which is why the next few clauses in the Bill are relatively vague. I entirely agreed with the Minister when he said that he wants to leave it open to see how things work and how groups of organisations and people come together. We will discuss later issues such as the proportion that should belong to commoners. Overall, I support the Minister’s desire for flexibility.

A number of these overarching bodies already exist. We discussed on Second Reading the Dartmoor commoners council, which is laid down in statute—the Minister has tabled an amendment on the matter. There is the Federation of Cumbria Commoners, the Federation of Yorkshire Commoners and Moorland Graziers, the Welsh commoners forum and, I am sure, many, many other groups of individuals who come together within an umbrella organisation. What is common to them is that they bring together voluntary commons associations.

The second part of my case is that there is no doubt that many voluntary commons associations are not convinced that it is in their interests to convert into statutory associations because of the costs and regulation involved in doing so. The Minister will seek to allay that concern, but it is genuine. Thoughts on the issue are being put forward in a joint paper by the NFU and the National Sheep Association, which represent many hundreds of commoners. The Welsh commoners forum is also involved in putting the case.

The associations are very concerned that there considerable added costs will be involved in running a statutory body by comparison with running a voluntary body. The Minister made it clear that he wants to keep voluntary bodies when they wish to remain so. Indeed, it is likely—many may say desirable—that a statutory body would be an umbrella body for a group of much smaller voluntary associations.

That leads me to the issue of the terminology. For the life of me, I cannot see why we need to call the statutory body an association, given that the voluntary body will remain a voluntary association. That can lead only to considerable confusion. As I said, many existing umbrella bodies have chosen other words to describe themselves, such as “council”, “forum”, “federation” and so on.

I am not wedded to the word “council”; if the Minister says that it has too many local government connotations and that we need to think of another term—“commons court”, “federation” or whatever—I shall not mind. My principal point is that to avoid confusion it would be wise for the word “association” not to refer to both a statutory and a voluntary body, because nobody would know the difference.

Somebody trying to deal with their local commons association would not know whether it was statutory or voluntary without some investigation. If the titles were different, that person would know that there was a distinction. I have struggled with this issue and I shall listen to the Minister with interest if he tries to persuade us to leave the Bill as it is. There is, however, an unarguable case for an alternative term. As I said, if the Minister wants to think of a term different from “council”, so be it, but it has to be other than “association”.

David Drew (Labour, Stroud)

I am happy to make an offer to the hon. Gentleman; we will agree to “council” if he agrees to our amendments that would promote legitimacy by having people elected to that body rather than things being contrived so that those who form the voluntary associations decide who serves on them. I do not think that that would give such bodies any great legitimacy. The hon. Gentleman may choose to think about that offer before we come to clause 30.

I am intrigued by the notion of a difference between a council and an association. If I read the regulatory impact assessment properly, the Government will set much greater store by how people form themselves into that body, whatever it is to be called, in respect of environmental and social purposes—environmental in the sense that it will be a representative body that applies for environmental grants, or some form of support, and the single farm payment and ascertains when they get paid, and, more particularly, looks at the higher level of environmental support for the area that people are farming.

On the social side, we are looking at some accountability and also some responsibility. Animal welfare, in which I have an interest, is listed as one of the issues. The last time I went out with the Royal Society for the Prevention of Cruelty to Animals we were looking at a beast on Minchinhampton common, which was mentioned on Second Reading. The RSPCA officers made it clear how difficult they had found things because this animal was in some distress, and it needed its hooves cutting back. The officers found it difficult to serve an order because it was not clear whom the animal belonged to; although they had tried to ascertain that, they had not made much progress.

I see this measure as encouraging those who keep animals on the common, who will be part of the representative body, to take some responsibility for the animals if they are grazing on the common. To be honest, I am indifferent to how we would change the term. “Association” means something to me, but I can see the value of calling the body a council if that differentiates it from existing voluntary associations, provided that under clause 30 legitimacy is entailed as part of the Bill.

David Maclean (Conservative, Penrith and The Border)

I support my hon. Friend the Member for South-East Cambridgeshire, who made a valid point. No point of Conservative party philosophy is involved in the amendment; there should be no political divide between us. I knew nothing about this issue until I got a brief from the Federation of Cumbria Commoners. As the hon. Member for Workington (Tony Cunningham), the Whip, will tell the Minister, the Federation of Cumbria Commoners is not a big Conservative landowning interest with an axe to grind, but represents hundreds of small farmers and commoners on the fells in both our constituencies, who are saying that this provision will simply cause confusion. They generally like what the Government are trying to do in the Bill and can understand the concept of a statutory association. They are saying, “We may continue with our voluntary associations, but we might move to statutory ones if there is money in it for us; and the Minister has all the money to go with the powers that we will have”—although that is a different debate.

The Cumbria commoners are saying that there will be total confusion if the associations are called the same thing. Irrespective of the legitimacy of the new council or statutory association, the Cumbria commoners are saying, “We’re small farmers, not lawyers or experts, and when we hear of a commoners association, we assume it is the current thing that we have and understand. If the Government are going to create a new body, please, for goodness’ sake, irrespective of the powers they give it, just call it something different.” The commoners have suggested the word “council”, which is not set in stone—perhaps it could be an authority, or some other words could be used—but they want something different from commoners associations, which is the current model that they all understand, have had for many years and are happy with. The Government are creating something new and they should call the statutory body something different, so that we can tell the dog from the rabbit, as they might say in Cumbria.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

The Liberal Democrats support the setting up of a statutory body to represent the interests on commons. The Minister will know that whereas the voluntary associations have been successful in entering some of the environmental schemes that have been available, there has always been a difficulty, because they have always had to have unanimous support from the commoners. We hope that the statutory solution will ensure that when the majority of commoners wish to abide by a management scheme agreed to achieve environmental objectives, the whole of the common will be able to go in and get the benefit and all the people who contribute to its management get the reward as well.

It was brought to my attention some time ago that a common on Abergwesyn hill that tried to enter an environmentally sensitive area scheme in Wales was confounded because one of its members refused to conform to the management scheme put in place. That is a huge disadvantage and damage to the common, but it also affected those commoners who could have benefited from it.

We support this measure, but we also believe that there is a role for voluntary commons associations, because they do an awful lot of good work in managing the commons, easing out problems arising from time to time in terms of access and nature conservation and in the co-operative gathering and shepherding of sheep that takes place to ensure that, for instance, in terms of scab control, particular commons are cleared at a particular time so that sheep are not left that can continue the cycle of infection.

We also believe that confusion could occur, with the voluntary associations being confused with the statutory bodies. We support the amendment moved by the hon. Member for South-East Cambridgeshire. We are not particular about what the statutory body is called, but if the amendment were accepted it would give a huge amount of clarity to the situation. It would not be cost-effective for some small commons to form a statutory body on their own; they would get together to share costs and administration, so there would be a common in two associations—a voluntary one and a statutory body. The concept of common law, going back to manorial times, is difficult, but the provision would just add a complication to that difficulty. I hope that the Minister, with his graciousness and his understanding of the issues, will accept the amendment.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I think that all the points have been made, but I should like to make one brief point. The Farmers Union of Wales and the Wales National Farmers Union are as one on the issue; they believe that there should be a change in nomenclature. When they actually agree, there must be something serious going on. That would be an excellent idea to avoid confusion. To support what other Members have said, whatever the wording, it should differentiate the voluntary bodies from the bodies set up under the Bill. Incidentally, the Farmers Union of Wales and the Wales National Farmers Union also see the need for voluntary bodies that work well to continue. They feel that we should keep the statutory form as simple and as representative as we can—we shall come to that shortly, no doubt—and that things should be done with the minimum cost.

Jim Knight (Labour, South Dorset)

I am grateful for the amendment. I recognise that the term “commons association” might attract some confusion, firstly because only appointed representatives, many of whom will be elected, will be members of a commons association—the remaining commoners and landowners will simply be participants—and secondly because of the potential for confusion with existing voluntary commoners associations. However, the Bill does not require us to include the words “commons association” in the name of each new statutory body. When making the establishment order, the national authority has to decide on the name of each new statutory body, and under the order it could well call it a commons council.

Having listened, I am willing to consider a minor amendment to clause 26 that would put beyond doubt the fact that the establishment order is not restricted to using the words “commons association” in the name of the new body.

Dan Rogerson (Liberal Democrat, North Cornwall)

I am grateful to the Minister for the direction in which he seems to moving. Unfortunately, it would be rather odd for the Bill to refer to “associations” throughout, and then for organisations to have different titles across the country. Bodmin Moor Commoners Association has formed as an interim group, based on the model of the Dartmoor Commoners Council. They are obviously expecting that to be the model for going forward. Does the Minister feel that there might be a little more room for further movement on the issue?

Jim Knight (Labour, South Dorset)

There may be room. As ever, I am your flexible friend. We may well want to call a new body a commons council. However, if we were to change all the wording in the Bill, that would require a considerable amount of consequential amendment, which might in turn confuse people, but I do not rule that out at this stage; I just offer the option of deciding to be consistent in all the order making, so that the bodies would all be called the same thing. The Committee might want to dwell on what that name should be, because there may be confusion with councils, too. It may be decided in some areas with a parochial church council, a parish council, a district council and a county council that a new council might be one council too far, particularly given how popular councils can be with the public. Some areas may prefer a commons committee or a commons court. I am relaxed about that; there is some merit in keeping the wording in the Bill as it is but simply being consistent in the order making, but I am happy to listen to the will of the Committee on that.

David Maclean (Conservative, Penrith and The Border)

Will the Minister accept that he is probably on the thinnest ice that he has been on all day? That may be reassuring in some ways. Almost every single subsection of clauses 26, 27, 28, 31 and 32 talks about commons associations. If every section and subsection of the Act refers to commons associations, it is no good telling us that at the end of the day they might be called councils, committees, authorities, quangos or courts. They will always be known as associations if the Act refers to them as such.

I welcome the Minister’s assurance that we will look at other matters, but we must do that in the next few days so that we can return to this matter on Report. His other defences and his buts and howevers have been reasonable, but he is being unreasonable about this matter.

Jim Knight (Labour, South Dorset)

I will take the hon. Gentleman’s words seriously. I am happy to consider the matter, but I am reluctant to accept all the consequential amendments and the confusion that they might create.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I reinforce the points made by the right hon. Member for Penrith and The Border. It would be worse still to leave the wording in the Bill and then proceed with orders using another name. That would be confusing in itself, let alone in comparison with a voluntary body. It would be compounded. The point may seem small, but I am sure that the Minister will get round it because he wants the Bill to be a good Bill, as we do.

Jim Knight (Labour, South Dorset)

I am grateful for those comments. I will go away and reflect on all that has been said and the view of some parties.

David Drew (Labour, Stroud)

I am becoming increasingly persuaded that we should call them commons committees because that is exactly what they will be. They will be separate from councils

The key point is that when the Government, presumably with some form of code of practice, go out and encourage voluntary associations to think about becoming statutory bodies and to be available to consider the environmental gains as well as the social gains that they would achieve, we must be clear about what they will be called if and when they become statutory bodies. We need to know that sooner rather than later.

Jim Knight (Labour, South Dorset)

I will go away with the intention of tabling amendments on Report, probably for the bodies to be referred to as commons committees. However, for the remainder of our debates I think we should continue to refer to them as commons associations; otherwise we shall become confused.

James Paice (Conservative, South East Cambridgeshire)

Miss Begg, I am beginning to feel even more inferior than usual, because during today’s proceedings the Minister referred to the immense importance that he always attaches to everything that the hon. Member for Meirionnydd Nant Conwy says about such issues and he referred to the power of the argument of my right hon. Friend the Member for Penrith and The Border, but I have so far escaped such blandishments.

Jim Knight (Labour, South Dorset)

Will the hon. Gentleman give way?

James Paice (Conservative, South East Cambridgeshire)

I am not sure that this is wise, but of course I will give way.

Jim Knight (Labour, South Dorset)

I hope that it is taken as read that I fully respect but do not necessarily agree with the hon. Gentleman’s thoughts and comments. As always, they were well thought through and well intentioned.

James Paice (Conservative, South East Cambridgeshire)

Yes, quite.

Tony Cunningham (Labour, Workington)

The hon. Gentleman should not have given way.

James Paice (Conservative, South East Cambridgeshire)

No. I think I am grateful to the Minister.

As my right hon. Friend the Member for Penrith and The Border said, I thought that the Minister’s initial response was extremely weak. The clause states clearly:

“A body corporate established under this section is to be known as a ‘commons association’.”

That could not be clearer or blunter, and to suggest that they should be called something else is stretching the point. Nevertheless, the Minister quickly moved on from that position to a more emollient one, which I welcome. I am sure that the Bill is on a word processor somewhere and I do not believe that the necessary amendments would be difficult to achieve. I would be happy with the word “committee”. My principal concern, as I made absolutely clear, is to avoid confusion and I am unfussed about whether we have a single term or, as the Minister suggested, a range of options. The important point expressed by all Opposition Members is to avoid the confusion of having both statutory and voluntary associations.

In the light of that, I look forward to the Minister’s amendments and promise that I will not chide him for the hundreds that will be necessary on Report. I beg to ask leave to withdraw the amendment.

Clause 27

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 61, in clause 27, page 15, line 28, after ‘land', insert

‘(and in particular persons actually exercising rights of common over it)'.

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to take amendment No. 100, in clause 27, page 15, line 30, at end add

‘(and in particular persons exercising rights of commonover it).'.

James Paice (Conservative, South East Cambridgeshire)

This is a short, straightforward amendment. It says that, under the procedure for establishment in clause 27(5), the appropriate national authority for the purposes of the debate—the Minister—must have particular regard to representations from three groups of people. We should make it clear that, under subsection (5)(b), it should not only be those who are entitled to exercise rights of common over such land. We have already heard how many rights are not exercised, but what matters is that the role of those who do exercise the rights over the land rather than those who just own the rights should be particularly important. In other words, if they were to receive an application to establish an association and it transpired that virtually everyone who was pursuing it may hold rights and be entitled to exercise them, but have not done so since the year dot—or, at least since 1965—clearly that application would be considered baseless. The amendment does not require great changes to be made to the Bill, but it is important that we ensure that the voice of the active commoners—those who are exercising their rights, and who obviously have a much greater role in the management of the common, which is what the Bill is about—is strong.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

Our amendment is the same as that tabled by the hon. Gentleman, although it is directed at a different place in the Bill. As he said, it emphasises the difference between active and inactive commoners. Many people with rights do not exercise them and it seems wrong that their views should be of equal weight to those who do exercise their rights. If the management of a common is to be altered as a result of the formation of the statutory body—the association—it is the people who are grazing the common who should enable that change to take place, either by reducing the number of stock on the common or increasing it. Inactive grazers are unlikely to be encouraged to put stock on the common as a result of the formation of a statutory body.

James Paice (Conservative, South East Cambridgeshire)

To add to that, will the hon. Gentleman not include signing up management agreements with Natural England or the Countryside Council for Wales, or even entering the Government’s higher level conservation stewardship schemes?

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

Absolutely. The hon. Gentleman has made a good point. The amendment would be useful because it would assure those commoners who contribute so much to the management of the common that their interests will be at the front of the national authority’s decision-making process. For those reasons, I hope that the Minister considers it appropriate to accept the amendment.

Dan Rogerson (Liberal Democrat, North Cornwall)

I support what has already been said. The important principle is that those who exercise their rights are often those who live and work close to the common. There might be many examples of dominant tenements being owned by people who do not occupy the premises and often have little to do with the common concerned. In constituencies such as mine, there are large numbers of second homes; properties lie empty for much of the year. In the past, many of those may have been agricultural holdings. It is particularly unfair that those who choose to take very little active part in the community or the management of the commons should have equal rights to representation or should be given equal standing when it comes to the formation of a commons association, committee, council or whatever it may be.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

May I urge the Minister to accept the amendment? I respectfully draw his attention to clause 39(1)(a), which is, in effect, a template for the use of the amendment in another context.

Jim Knight (Labour, South Dorset)

I am just looking at clause 39(1)(a).

We are resisting the amendments for a number of reasons to do with flexibility. It would be difficult to define what constitutes the active use of rights. Should commoners grazing two ewes for one day of each year be considered as exercising their rights, or should it be a greater proportion of rights for a more limited period each year? How long should it be before rights are considered inactive? The commoners may have entered an agri-environment agreement that necessitates rights not being used for a period—does that render them inactive?—or the common may not have restocked after suffering the impact of disease, such as foot-and-mouth. It would also be impossible to determine who falls within the definition of an active commoner, even if one could be determined.

The Bill does not prevent the national authority from according greater weight to the views of what it may define as active commoners, which will be important when there are a large number of clearly inactive commoners, compared with the number of apparently active commoners. However, in reality, on an agriculturally active common, it is likely that most interest, and therefore most representations, would come from those actively exercising their rights.

James Paice (Conservative, South East Cambridgeshire)

I have listened to the Minister’s argument about how it might be difficult to ascertain who is exercising the rights of common. Following the comment by the hon. Member for Meirionnydd Nant Conwy, will he say how he will do that under clause 39?

Jim Knight (Labour, South Dorset)

I am sure that I will do so when we get to clause 39. While I think about that, let me just offer one other scenario to hon. Members. On a common where there is no, or very little, agricultural activity, more weight might and should be attached to representations received from persons with nature conservation interests, or with statutory responsibilities for the common. We would not want to prevent such persons from being involved in, or having their voices heard in, the establishment of a commons association.

On that basis, I hope that the hon. Member for South-East Cambridgeshire will seek leave to withdraw his amendment.

James Paice (Conservative, South East Cambridgeshire)

I am disappointed with the Minister, because I do not think that he has listened to the argument at all. I am not sure whether he is coming to the end of his file tonight.

I made the case as eloquently as I could, and I appreciate that it may have its weaknesses, but the comment from the hon. Member for Meirionnydd Nant Conwy underlined the matter completely. The phraseology is identical. Under clause 39, it is to do with the consent for works:

“the national authority”—

that is, the Minister—

“shall have regard to...the interests of persons having rights in relation to, or occupying, the land (and in particular persons exercising rights of common over it).”

He obviously believes that, in that context, it is possible.

Jim Knight (Labour, South Dorset)

I am grateful to the hon. Gentleman. Of course, clause 39 differentiates between landowners and commoners, which is a much more straightforward difference than the one between active and non-active commoners.

James Paice (Conservative, South East Cambridgeshire)

I fail to understand the logic of that intervention, because we are only talking about people having

“the rights of common over it”.

Some of them will be owners, but some will not be. We are talking about

“the interests of persons having rights in relation to, or occupying, the land (and in particular persons exercising rights of common over it).”

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

The issue here is that an owner cannot exercise right of common because that involves exercising a right on someone else’s land. The Minister is wrong on this issue because it is bound to revert to a situation of people exercising rights as commoners, not as landowners.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the hon. Gentleman; he adds to my argument. The Minister is accepting, under clause 39, that he, as the national authority, will be able to divine which persons exercise the rights of common over the land. However, half of his justification for rejecting the amendment is that he will not be able to do that in relation to whether to set up an association. Frankly, it is a daft position and not one I would have expected the Minister to adopt. I am tempted to suggest that he has not read his notes because he would have seen through the argument if he had read them beforehand. I am far from satisfied with his response and unless he wishes to intervene, I do not feel inclined to withdraw the amendment.

Jim Knight (Labour, South Dorset)

To help the Committee, I shall undertake to write hon. Members in order to clarify that the main reason why I am resisting the amendment is because we want to retain flexibility. If I have failed to win the argument on flexibility, I apologise to the Committee and the hon. Gentleman, but I shall write to clarify the very similar wording of the two clauses.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for that small concession, but the principle remains. We believe that this is an important point of principle, and a number of outside bodies share our belief.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I am disappointed that the Minister could not see his way to accepting the amendment because there are other aspects of the clause that give me cause for concern. Who can initiate a procedure for establishment? There are many thousands of commons throughout England and Wales and all essentially could apply to become the statutory body, the association or whatever we decide to call it in the end.I would think that the people best placed to initiate such a procedure would be the owner of the common, the people who exercise rights, or perhaps even inactive graziers or people involved in the management of nature conservation, access or some other element of the public good.

Organisations or individuals could initiate the procedure for establishment, which would cause a lot of work for a voluntary association, if that were in existence, or the national authority. The Department for Environment, Food and Rural Affairs or even the National Assembly of Wales could be swamped by applications—I will not call them malicious—that were not based on the best interests of the common. It causes me real concern, because if such an application were made and it resulted in a lot of work for individuals who were interested in the common, it might deter them from making genuine applications that could improve it.

People might not consult enough among commoners or voluntary associations to determine the most appropriate application, whether by an individual common or by a number coming together to form a statutory body of sufficient substance to justify the administration and costs. I attempted to table an amendment to that effect, but I could not fit it into the Bill. There is cause for concern, which the Minister could address on Report by coming forward with a limitation on the people who could initiate such a procedure.

Jim Knight (Labour, South Dorset)

Clause 27 sets out a procedure for establishing a commons association. An association will be brought into existence when the Secretary of State makes an establishment order, and orders will be tailored to the specific circumstances of the common or commons in question. The first step in the establishment process will be at the local level, and it is for local legal interests to decide whether they want to establish a statutory association. We shall not impose an association on a common.

I can reassure the hon. Gentleman that a commons association will not be foisted by interested outsiders upon those involved in managing the common. We realise that a local interest may need some help at the preliminary stage. In recent years, the Rural Development Service has been significantly involved in helping set up voluntary commons associations to assist commoners in their applications for agri-environment funding. As part of Natural England, the service will continue that work. Natural England will play a vital role in helping to facilitate the creation of those local associations where they make good sense, but not to impose them.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I believe that the Minister is genuine about that. He has before given us the assurance that DEFRA and—I certainly hope—the National Assembly for Wales will not be involved in enforcing the establishment of statutory associations. However, that is not my concern. My concern is that people who are not legally involved with the common might get it into their heads that statutory associations are a good thing and make applications on behalf of commons for which they have little interest.

Nothing in this Bill prevents somebody from initiating a procedure on behalf of a common where the great majority has no interest in forming an association. The time and effort that would have to go into consultation and representation would be entirely wasted, and they would use up a huge amount of energy that could be better expended in another direction.

Jim Knight (Labour, South Dorset)

Regardless of who makes the application for a commons association, the national authority will still be required to ensure that there is substantial support for it. In assessing the level of support, the national authority will publish the draft establishment order and representations on it, paying particular regard to the views of those with a legal interest in the common, regardless of who applies. Where significant objections are made, there will be scope for the national authority to, in turn, hold a local inquiry. Those safeguards will prevent external interests from overriding the views of those who would be most affected by any new commons association—the people whom the hon. Gentleman seeks to protect.

There are sufficient safeguards in the mechanisms that are being set up for the establishment of a statutory commons association. It is intended to be a bottom-up process. Part 2 will not impose those associations on the key local interests against their will.

Clause 29

Jim Knight (Labour, South Dorset)

Clause 29 requires the Secretary of State to make regulations prescribing standard terms about the constitution and administration of all commons associations. Regulations made under the clause are subject to the affirmative procedure. The standard constitution will cover matters that are relevant to all associations, such as conduct of members, frequency of meetings, and financial reporting.

Paddy Tipping (Labour, Sherwood)

Is it prescribed in the standard constitution that sittings of such bodies be in public?

Jim Knight (Labour, South Dorset)

We would expect that normally the sittings would be but, as with most statutory bodies, there may be circumstances when the associations may want to sit in private.

Each association will also have its own establishment order that will set out its functions. That order can modify the standard constitution when necessary, or can replace standard terms with terms more suited to local circumstances. Some Members may have seen the draft standard constitution and the specimen draft establishment order that we published last autumn, and which were wielded in the Chamber by the hon. Member for Meirionnydd Nant Conwy. They illustrate how the establishment order might integrate with and modify parts of the standard constitution. There is also an example of one possible approach to representation, and a voting mechanism for situations in which there are different interests for a group of commons.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Is the Minister prepared to produce copies of the two orders so that the Committee can examine them between now and the conclusion of our deliberations? They came to me surreptitiously, but I lost them, or maybe they were surreptitiously lifted—I am not sure.

Jim Knight (Labour, South Dorset)

I apologise to the Committee—it would probably have been useful had I anticipated that request and circulated the documents in advance. They are available on the DEFRA website but I shall make sure that members of the Committee have copies. The net effect of the documents would be to reduce the demands and potential costs on those who want to create an association, but to leave them the flexibility that they need.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I believe that the issues with which we shall deal in this and the following clause will determine whether the statutory associations succeed. If there is any doubt about the support that the Minister has for the Bill, especially from commoners themselves, it arises from these issues, so if he could supply the draft documents that would be good. The hon. Member for Meirionnydd Nant Conwy is a known magician, and the way in which he produced the documents out of a hat on that occasion was extraordinary and well up to his usual standards.

I hope that there will be consultation on the standard constitution before the regulations are made, because people would like to be involved, and consultation would give them confidence that their interests are being looked after. I have no doubt that there will be many amendments to the standard constitution, because the nature of commons is extraordinarily varied. For example, I have only to look to the common of Llangors lake in my constituency, which is entirely composed of water, and over which there are no rights at all, unless one can walk on water. I do not even think that the Countryside and Rights of Way Act 2000 applies to that common, and I assure the Committee that there are no rights of piscary. Yes, there will be amendments to the standard constitution, but that standard constitution will be the basic document, and people must have confidence in it.

Jim Knight (Labour, South Dorset)

For information, the hon. Gentleman should know that the standard constitution will be subject to affirmative resolution, so it will be scrutinised by both sides.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

That is a great comfort. I am not sure whether many of the commoners whom I represent understand the affirmative resolution procedure, but I am sure that they will be heartened by that comment. The more time that the Minister, DEFRA and the National Assembly for Wales can take on the issue, the better the rewards will be. I assure him that I will be out there encouraging people to take up this opportunity and make the most of it, but we must put the foundation in place to make a success of what should be a good piece of legislation.

Clause 30

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I beg to move amendment No. 101, in clause 30, page 16, line 27, at end insert—

‘(1A) Such constitution or order under section 26 should ensure that holders of rights on the common have a majority.'.

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to discuss the following: Amendment No. 51, in clause 30, page 16, line 29, at end insert—

‘( ) the proportion of members of the association who should be owners of rights.'.

Amendment No. 73, in clause 30, page 16, line 33, at end insert—

‘(e) the holding of meetings in public'.

Amendment No. 37, in clause 30, page 16, line 35, leave out paragraph (3)(a) and insert—

‘(a) the election of at least half the members of the association;

(aa) the local community from which members are to be drawn and the role of representatives of town and parish councils'.

Amendment No. 65, in clause 30, page 16, line 41, at end insert—

‘(h) membership of the association consisting of common rights holders, the owner of the land, tenants and holders of sporting rights.'.

New clause 3—Membership—

‘(1) The membership of a commons association must reflect local interests.

(2) At least half of the members must be elected.

(3) At least half of the members must be resident in the area of the local authority in which the common or town green is situated.'.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

It is a pleasure to speak to amendments Nos. 101 and 73 in this group. Amendment No. 101 is about how the constitution should look. I cannot remember the details of the constitution that the hon. Member for Meirionnydd Nant Conwy produced on Second Reading, but I suspect that it did not include as a majority on the commons association those people who exercise rights on the common. This is a probing amendment.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

If I can enlighten the hon. Gentleman—I am speaking from memory—I believe that the constitution said that the membership would be between 10 and 12, of which five or six would be commoners and the rest would have other interests. If that will be the number, it will not leave a great deal of room for elected members, for example, and it will not allow for a sufficient majority in favour of the commoners.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I thank the hon. Gentleman for reminding me how the association would be constituted. Again, those people who actively manage the common should have a majority on the association, and I know that hon. Members will also be considering ways in which people can be elected. For generations, people have contributed to producing commons that are in good heart and under sound management. I hope that the amendment will give confidence to such people so that they can continue that work and so that their vision will drive it forward in the future.

I hope that amendment No. 73 will appeal to the hon. Member for Sherwood, as it would require that meetings of commons associations should be held in public. They might want to transact some business such as financial matters, particularly financial matters involving members of the association, in closed session, but, if the amendment were accepted, the general presumption would be that the meetings would be held in public, which is best practice for public bodies transacting their business.

David Drew (Labour, Stroud)

I rise to support amendment No. 73, to which the hon. Gentleman just referred, and amendment No. 37 and new clause 3, which are in my name and the names of my hon. Friends the Members for Sherwood and for Pudsey (Mr. Truswell). We had a debate under the previous clause as to whether meetings of the associations, now to be called committees, should be held in public. I was happy that my hon. Friend the Minister agreed to the draft orders being made available. There must be clarification on which matters would be discussed in public. I accept that the caveats will be finance and, as discussed in the debate in the other place, matters that refer to individuals who may be taking action against another individual. We would not expect such matters to be discussed in public, but I hope that they would be reported on publicly in due course.

Amendment No. 37 and new clause 3 duplicate each other in a sense, although new clause 3 is somewhat longer. It sets out what we have in mind—to give some democratic accountability to the bodies—in two ways. It provides for elections, which we hope would also include election of the commoners themselves, to give them legitimacy. We also wish the bodies to have a local essence, and we feel that that aspect would be best performed by parish or town councils.

The analogy is that where parish and town councils have allotments, they would bring forward representatives of those bodies. We feel that that is a good model, which can be replicated with commons or village greens. Parish and town councils would certainly be responsible for village greens, but it is possible that in terms of commons they do not have a say at present, and we wish to open this up to give local accountability and local legitimacy. One hopes that councils would take a strong interest in the matter. We also hope that local areas would want to take an interest in tying in such a plan with the environmental assistance that the Government make available through changes in the common agricultural policy, and to take some responsibility for it.

Although the amendments are probing amendments, they are useful in that they lay down in terms of statutory instruments how we would want the elections to take place. There are a number of details, but unless such provisions are put in the Bill or at least debated so that we know exactly what the Government have in mind, this ad hoc measure will never be teased out. I hope that the Government will respond. I am sure that my hon. Friends want to talk in more detail about how they think it might work in practice.

James Paice (Conservative, South East Cambridgeshire)

The amendments, including my amendments Nos. 51 and 65, raise a number of issues. Before I enter into the details, I shall mention that in this clause we are considering almost a contradiction. I can understand how it has arisen. In earlier debates the Minister used the argument for flexibility, which I support in principle, yet here we are with a standard constitution that will be subject to the affirmative resolution process in the House. Obviously, the element of flexibility will therefore be more than a little bit reduced. I am not arguing against a standard constitution, but I think that it seriously diminishes the value of using the flexibility argument against some of the amendments that hon. Members have put forward and that I am about to address.

We are talking about a plethora of different scenarios. Huge commons, and many small commons, each with a voluntary association, will come together under a large umbrella association following the Minister’s early edict. He continually refers to them as associations for the sake of the Bill, but they will operate under a much larger statutory umbrella body. They could include hundreds of rights holders or half a dozen; there could be one relevant local authority or half a dozen. We will inevitably be dealing with a huge variety.

I look forward to seeing the draft constitution when the Minister provides it for us, but it does give rise to a question. This is a general point, to which I hope he will respond. He might leave things open, but does he envisage that the management of the association should be done by some sort of board—I cannot use the word “committee” because of the earlier agreement—a group of officers or something else? I cannot imagine how it could be possible for a body with 10 or 12 members to represent all the interests in some of the larger situations.

Let us consider the area in which the constituency of my right hon. Friend the Member for Penrith and The Border is situated, and the Cumbria commoners. I do not know how many associations there are in that overall council, but I suspect there are several. I would be hard pushed to identify just 10 or 12 individuals to sit on such a body. Therefore, I am unsure that there will not be a need for a larger top body, with some sort of board, management group or something else underneath it. Perhaps the Minister will respond to that particular point. My amendments are aimed at that top body rather than at whatever management board there will be where necessary.

I understand that the Minister wants flexibility, but I have a lot of sympathy with the point raised in amendment No. 101: the majority involved should be owners of rights on the common. I want to refer to clause 31, which we shall come to and which lays down the functions. The functions of an association are quite limited and are generally agricultural. They relate to the management of agricultural activities, vegetation and the rights, which will be largely agricultural although some of them might be piscary.

I am not convinced by the argument of the hon. Member for Stroud about the need for lots of local authorities and such bodies to get involved, because we are talking about a pretty narrow sphere of agricultural functions. That is why it is important that the principal people involved are those who are carrying out such activities on the common: the owners of the rights of common. So, I support amendment No. 101.

My amendment No. 51 is slightly different, and seeks to say that the standard constitution should determine the proportion of the members who should be owners of the rights. I would go along with the majority being in that situation, as the hon. Member for Brecon and Radnorshire suggested. There needs, at least, to be a reference about the proportion of the association who should be owners of rights.

I come on to amendment No. 65, which raises an issue that I raised briefly on Second Reading and which has not yet come up during Committee. On reflection, the amendment is probably directed at slightly the wrong place in the clause, but that is a separate issue and can be addressed at another time. The principal issue is about who should be in the association. This following is not necessarily an exclusive list, but it should be inclusive. Obviously, the commons rights holders should be involved. It is essential that the owner or owners of the land should also be in the association, as should tenants of the land.

I particularly want to refer to the last group in my amendment, which is the holders of sporting rights. I wish to do so because the holders of sporting rights will hold them by virtue of the owner of the land. As I understand the law, they will be leasing the rights not from the commons or the rights holders, other than perhaps in extreme situations, but from the owner of the land. The obvious example would be those commons that are also grouse moors, but many smaller commons will have rough shooting or other conventional forms of shooting sports taking place on them. The shooting rights will be leased from the owner of the land, often for a significant period, possibly 10 years.

I know that the hon. Member for Sherwood takes an interest in such things and that the Minister will know that the value of sporting rights can be influenced over several years of practice in developing the sporting activity, habitat and so on. Therefore, I am concerned that the commons association could take action that was to the serious detriment of the holder of the sporting rights over a period of time. If someone has just signed a 10-year sporting lease when the commons association comes along and makes management decisions according to functions under clause 31, which are extremely deleterious to the sporting capacity of the land, that person would have no comeback. That would be a very serious situation.

I am not suggesting that simply being a member of an association would prevent such situations, but the holders of sporting rights should at least be in the association, which is why I included them in amendment No. 65. I hope that the Minister will understand—picking up the earlier gentle gibe of the hon. Member for Sherwood—that this is not some sort of throwback to antiquated support for landowners, but a recognition that sporting rights are an extremely valuable commodity to the individual and to the local economy of a number of areas. Grouse moors, in particular, add huge sums of money to local communities and the people undertaking rough shoots on more conventional common land will be ordinary working people enjoying a day out with a gun and a dog, perhaps. The important point is that their rights need to be taken into account, if not totally protected, in the setting up and constitution of an association, which is why they are included in amendment No. 65.

Philip Dunne (Conservative, Ludlow)

May I illustrate for the benefit of the Committee some of the problems posed by introducing too much democracy into some of these associations? The example I would like to cite relates to a common in my constituency and the Stiperstones commoners association, which has three holders of grazing rights, one of whom is retired and is not exercising his rights. The common is a substantial one covering an area of 1,000 acres, with only two practising graziers. If the local authorities and the landowner—I support the contention of my hon. Friend the Member for South-East Cambridgeshire that the landowner and the tenant of the land should have rights—were to be included in the commons association and too many other organisations were involved, the graziers, under the proposals in some of the amendments, would be automatically outvoted in associations. That cannot be right.

David Drew (Labour, Stroud)

That is the whole point of trying to democratise these bodies: to energise graziers so that they come back to use and advance their rights properly. I accept that there may have to be a balance between the rights of the grazier, the owner and other bodies, but that is exactly the problem with a number of commons associations at the moment. They do not have any life and they are effectively inert.

Philip Dunne (Conservative, Ludlow)

The hon. Gentleman makes the point that I am trying to make. In many cases, graziers are not there to take up the grazing rights. The land does not have the capacity to sustain more livestock. Therefore, it is down to the few people who remain actively involved in it to continue to enter into management agreements to preserve agricultural activity on these commons. If we try to put in place a prescriptive system for the management of the great diversity of common lands, we are in great danger of over-regulating what in many cases requires a very light touch.

Jim Knight (Labour, South Dorset)

Some interesting points have been made during this debate. Amendment No. 101 would require a standard constitution or an establishment order to ensure that commons rights holders have a majority of votes in the association. Each commons association will be different because of the numbers and characteristics of its commons. It will not always be appropriate for rights holders to be in the majority in an association, especially on a lowland common where common rights are not exercised actively or perhaps even on the common to which the hon. Member for Ludlow referred where there are only two active graziers. However, when an association consists of agriculturally active commons it may be appropriate for active rights holders to have a majority. It is important to retain flexibility so that the association can be tailored to local circumstances.

The hon. Member for South-East Cambridgeshire was not questioning flexibility or a standard constitution, but how the two fitted together. If it would help him, at the end of my comments on the previous clause I said that that will reduce demands and potential costs on those seeking to form associations because they would be able to see a standard constitution agreed by both Houses. However, as for flexibility, we can vary away from that if the national authority chooses to do so to suit local circumstances.

James Paice (Conservative, South East Cambridgeshire)

I challenge the Minister on that matter. If he is absolutely correct, fine, but am I right that he is suggesting that the Bill is giving the national authority power to permit another constitution that is not in accord with the standard constitution that the House has approved?

Jim Knight (Labour, South Dorset)

Each association will be set up by order. My understanding is that, when each is set up and properly consulted on through the process of establishment, if there is a variation away from the standard that seems sensible for the local association, that will be possible. If I am wrong, I will advise the hon. Gentleman. However, I am assured that I am not.

James Paice (Conservative, South East Cambridgeshire)

For the purpose of clarity, is the Minister saying that the order setting up the association will take precedence over the order approving the standard constitution?

Jim Knight (Labour, South Dorset)

Yes, that is set out under clause 29.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Strictly speaking, the order would not then be subject to the affirmative resolution procedure because the order in its final form would be drafted by someone else and not by the House.

Jim Knight (Labour, South Dorset)

The standard constitution would be subject to the affirmative procedure so that, when those seeking to set up an association from the bottom up are looking at how to start and at what sort of rules would be wanted to govern the work of the association and its procedure, they would see that standard rules have been agreed actively by both Houses through the affirmative procedure. That would be helpful in streamlining and fast tracking the approach while still retaining the flexibility that ultimately we want to be able to offer. As has been said, each common and its situation is different.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The Minister has been generous all day in giving way. However, I do not follow his argument. I had a quick look at the standard orders. There is nothing untoward in them. Let us suppose that there is a huge common with lots of sporting and recreational rights, owners, grazing and even fishing rights. To bring in the democratic element and to accommodate all those interests, surely the 10 to 12 would have to be doubled. If the standard constitution that had been passed by order under the affirmative resolution procedure is then effectively doubled in size outside, would that not seem a little strange?

Jim Knight (Labour, South Dorset)

I do not regard that as strange because the intention of a standard constitution is to minimise the repeated need for parliamentary scrutiny of many standard forms. There is still the ability to vary away from those standard forms, which will be subject to scrutiny once the national authority brings it forward, but each time an association is set up, we do not need to go over and over again those matters that are lifted straight from the standard set of rules that have been agreed under the affirmative procedure. I hope that that explanation is helpful.

James Paice (Conservative, South East Cambridgeshire)

I apologise to the Minister for intervening again but, as the hon. Member for Meirionnydd Nant Conwy said, he has been generous. I want to be clear about the propriety of such matters. As the Minister said, the standard constitution will be approved by affirmative procedure. As I understand clauses 26 and 27, the order establishing each statutory body will not go through under the affirmative procedure. I am no expert in House procedure, but I find it surprising that a ministerial order can take precedence over the affirmative procedure. Surely, at least the order setting up an association should be subject to the affirmative procedure.

Jim Knight (Labour, South Dorset)

It would occupy a considerable amount of parliamentary time if every order were subject to the affirmative procedure. Each order setting up an individual association supplements what has been agreed, and by going through that process, we are trying to save time and make things easier for people. The Committee may want to reflect on that. If it has any further questions for me, I shall, as ever, be willing to deal with them.

The hon. Member for South-East Cambridgeshire asked about large associations and whether there will be any form of executive group. Commons associations could be set up over as large, as many or as few commons as the local legal interests support. We should expect many associations to cover more than one common, and in such cases, the number of representatives would be tailored to suit the size and type of commoners. The Dartmoor commoners council has jurisdiction over 30 commons, for example. A large association might include a governing body with smaller committees, but crucially it would still be just one association. There is flexibility in the legislation. I think that I have dealt with amendment No. 101, and I hope that I have given the hon. Gentleman sufficient reason to withdraw it.

My hon. Friend the Member for Stroud moved amendment No. 73. This amendment would add holding meetings in public to the illustrative list. The list refers in subsection (2)(c) to the proceedings of an association. Terms about the proceedings would necessarily include terms about the holding of meetings in public, so the national authority will already have the power to make that sort of provision in an establishment order or in the standard constitution.

As I said in response to my hon. Friend the Member for Sherwood, we envisage that commons association meetings will be held in public. The draft standard constitution that the Committee will see shortly provides that meetings of an association and any committee of an association—or committee of a committee, potentially—will be open to the public. However, that is subject to the proviso that an association’s establishment order can prescribe circumstances in which the public may be excluded.

Amendment No. 37 and new clause 3 look at the representation of local interests on commons associations. Amendment No. 37 would amend the illustrative list of terms that may be contained in the standard constitution or an establishment order. It would replace the reference to membership with a more specific reference that seems intended to require that at least half the members of an association should be elected, that the order should specify the local community from which members are to be drawn, and the role of representatives of town and parish councils. Similarly, new clause 3 would require membership of a commons association to reflect local interest.

The amendment and the new clause would require at least half the members of an association to be elected. Clause 30(3)(a) provides that the standard constitution or an establishment order for an association may include terms relating to the appointment of members, and it clarifies that “appointment” includes appointment by election. That is because if the number of individuals with a particular interest were small—for example, if only one or two landowners were appointing a representative—or if there were no competition for a post, an election could not take place.

The Bill contemplates that members might be appointed through an agreed procedure that does not necessarily involve a vote. I stress that elections will be used when there are sufficient numbers of persons to warrant such a process. Paragraph (a) of amendment No. 37 would prevent the use of the most appropriate method of appointing members to the association, and I hope that it will therefore not be pressed.

New clause 3 would require at least half the membership to be drawn from the local area and would also broaden the representation on commons associations to include parish and town councils. Our objective for commons associations has always been to allow landowners and those with common rights to develop more effective management practices on commons, and associations will therefore be set up to manage rights of common, vegetation and agricultural activities. They are not being established to manage the land for the wider public benefit, or to deal with all the activities that occur on commons, nor will they be given such powers.

Membership of commons associations will therefore normally be limited to those who have a legal interest in the common: namely, commoners, landowners and those holding other rights including sporting rights—we certainly regard sporting rights as being a type of legal interest over commons, and it is right that associations are representative of those who are directly affected by their decisions.

David Drew (Labour, Stroud)

What about householders? A number of them are entirely dependent on a common, largely because of the need for access, which is the easement issue on which the Minister became expert through the Natural Environment and Rural Communities Bill. How do they get representation, and when there is a management arrangement, usually through an organisation such as the National Trust, how is that reflected in the way that commons operate? I accept that we are largely talking about agriculture and in my question I am not, but not all commons are principally about agriculture; they have much more importance in providing access to the general public and use for the other things that the Minister has mentioned.

Jim Knight (Labour, South Dorset)

The short answer is that if householders, or the National Trust, or Natural England or the Countryside Council for Wales have a legal interest, they would have representation. Obviously, associations can co-opt members, and there can be flexibility of set-up so that, if there were a reason to vary membership slightly for reasons on the ground, we might do that. The core thing that the Committee must understand, however, is that those who have a legal interest must have proper representation. There is nothing in the Bill that authorises interference with any easement unless the beneficiary of the easement consents.

Broadening the range of interests represented on an association would also make commoners far less likely to form associations, thus making it more difficult to achieve our objective of effective common land agricultural management. Although we do not wish to impose a requirement for local involvement, the Bill provides sufficient flexibility for other interested persons or bodies, such as parish or town councils, to be involved in the association if there is substantial support for that approach. That may be relevant on a non-agricultural common, where membership may be made up of commoners, the landowner and other interested parties such as the local authority, the wildlife trust and local inhabitants.

The wider public interest, such as public access and nature conservation, will be represented by Natural England’s oversight of common land, and in Wales by the Countryside Council for Wales. As was discussed on Second Reading, Natural England would not necessarily be a member of the association unless it had a legal interest in the land or was co-opted by the members.

We shall establish a national stakeholder group to advise on implementation of the Bill, which will provide an opportunity for involvement of wider interests.

David Drew (Labour, Stroud)

What happens if there is a dispute about the way in which the association is set up or runs? Is that where Natural England could be lobbied or could arbitrate? A dispute between agricultural and public use is quite possible; that is why some of us were keen to have some local representation, in terms of ensuring legitimacy, for those people who clearly have a vested interest in making sure that those commons exist in future.

Jim Knight (Labour, South Dorset)

Obviously, we hope that, in establishing the association, we will manage to get the balance right, in terms of representation and accountability through election and so on. However, if that fails and there is a dispute, the national authority has the power to arbitrate. Under a later clause, associations can be wound up by the national authority following consultation. That ultimately is the sanction. Certainly, we would hope that Natural England would report to the national authority if it thought that there was a problem with the association not fulfilling its functions properly. I hope that that satisfies my hon. Friend.

On amendment No. 65, we certainly expect that the majority of associations will be made up of common rights holders, landowners, tenants and those with sporting rights. Those people are likely to be the majority of members on an agriculturally active common and, in making the establishment order, the national authority will have particular regard to their views, but we do not want to limit an association to that because of the situation on non-agricultural commons. As my hon. Friend the Minister for Climate Change and the Environment said on Second Reading, the Dartmoor commoners council has a veterinary officer, for example, who advises on animal welfare.

Finally, turning to amendment No. 51, which would enable the standard constitution or an establishment order to specify the proportion of members of an association who must own rights over that common, we have avoided specific requirements about membership in the primary legislation in order to allow local interests to have a larger say at the establishment order stage about how different interests in a common should be represented. It is such flexibility that we are concerned with. I hope that the hon. Member for Brecon and Radnorshire accepts that and will withdraw his amendment.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

On a point of order, Miss Begg. I wonder whether you could say whether there will be a stand part debate on this clause.

Anne Begg (Labour, Aberdeen South)

It is very much up to the Committee to decide whether to continue debate. There has been a long debate on these amendments.

The rest of the debate is in Hansard.