Commons Bill [Lords]

Public Bill Committee, 27 April 2006.

Standing Committee D

Clause 32

David Maclean (Conservative, Penrith and The Border)

I beg to move amendment No. 52, in page 18, line 13, at end insert—

‘( ) In exercising its powers under subsection (1) the association may appoint agents to act on its behalf and such agents may include voluntary commons associations which are members of the statutory body.'.

Michael Weir (Scottish National Party, Angus)

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

No. 62, in clause 32, page 18, line 15, at end insert

‘including agreements with commons associations, or with such persons as the council considers to represent the interests of persons exercising rights of common over the land.'.

No. 74, in clause 32, page 18, line 18, leave out paragraph (d).

No. 102, in clause 32, page 18, line 18, at end insert—

‘( ) make arrangements for the resolution of disputes;'.

No. 53, in clause 32, page 18, line 19, at end insert—

‘(f) appoint tribunals for the resolution of disputes.'.

No. 103, in clause 32, page 18, line 19, at end insert—

‘(f) establish tribunals.'.

No. 75, in clause 32, page 18, line 25, at end add—

‘( ) The powers of a commons association to acquire land as specified in subsection (2)(d) includes a power to cause its registration as common land or as a town or village green'.

No. 91, in clause 32, page 18, line 25, at end add—

‘( ) The powers of a commons association to dispose of land as specified in subsection (2)(d) shall be subject to provisions of section 16 (Deregistration and exchange: applications) as if the association is the owner of the land.'.

David Maclean (Conservative, Penrith and The Border)

The amendment, tabled in the name of my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice), is a straightforward probing amendment that seeks information from the Minister on whether, in exercising its powers under clause 32, a statutory commons association could appoint agents—people to act on its behalf—that could include a voluntary commons association. The Minister may say that that is taken as read and is already in the clause, or is somewhere else in the Act, but I just want an assurance that it is not precluded by the Act, and that it would be legitimate for a voluntary commons association to be an official agent—paid, if necessary—of the new statutory commons committee.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I am sure that it will be a great pleasure to serve under your chairmanship, Mr. Weir. I understand that it may be the first time that you have chaired a Standing Committee, and I am sure that you will find that we all behave in the best possible way. My party intends to support the Bill—the Minister has the privilege of steering it through and he has all-party support. However, it is our intention to improve it as muchas possible, because this is a once in a lifetime opportunity, and that is why we have tabled amendments.

Amendment No. 62—in the name of the hon. Member for South-East Cambridgeshire and myself—is similar to amendment No. 52. The Minister already indicated his anticipation that, whenthe statutory bodies representing commons are established, they may not be set up in relation to a single common but instead for a group of commons. In covering a range of commons, voluntary associations will still exist, and will still have purpose and function, bringing knowledge of local issues to the fore.

The amendment is therefore a probing amendment, as the right hon. Member for Penrith and The Border (David Maclean) said, and I hope that the Minister will say that what it proposes is how things should indeed work, and that the statutory association can act on behalf of the voluntary association in establishing agreements, including environmental agreements that will bring resources to commons, in order that commons achieve their agricultural and public purposes.

Amendment No. 102 proposes making arrangements for dispute resolution, and there is a further amendment that is intended to establish tribunals. On reflection—it is not just the Minister’s prerogative to reflect—our amendment No. 53 isbetter than amendment No. 103. Much of the implementation will be done by means of regulation, and I hope that statutory bodies will be given the power to resolve disputes, because if commons associations are to be more active in commons management, from time to time there will bedisputes about management, about implementation of agreements, and about the role of individual commoners. What we do not want is a costly system of court applications for every dispute, so we want the Bill to include a means for establishing dispute resolution procedures.

The amendments are small ones, but will be of great import when the statutory bodies are set up. We would like the Minister to consider them, and in his wisdom, agree to them in due course.

James Paice (Conservative, South East Cambridgeshire)

May I apologise for my delay of a second or two in arriving, Mr. Weir? I thank my right hon. Friend the Member for Penrith and The Border for his words. As he rightly said, amendment No. 52 is designed to ensure that the statutory associations, or whatever we end up calling them, can appoint voluntary associations to act on their behalf—in other words, act as agents.

The idea will not be completely new to the Minister, as it has been discussed with his officials. It came from the National Farmers Union and the National Sheep Association; they, obviously, are involved in many of the voluntary associations and are anxious that it should be possible to make such appointments. If the Minister said that the amendment was not necessary and that such powers were implicit and did not have to be in the Bill, that would be acceptable, but there would be no harm in putting them in the Bill. Nothing would be lost and some things would be gained by making it clear that an association “may” appoint agents to act on its behalf.

Amendment No. 62, which I tabled and to whichthe hon. Member for Brecon and Radnorshire(Mr. Williams) added his name, is very similar, apart from the obvious point that it relates to a different part of the clause. It goes slightly wider than appointing agents; it is about enabling other sorts of agreement to be made with commons associations. Such agreements might not be purely agency arrangements. They might be about different things, perhaps in respect of the points that we have discussed several times—conservation or stewardship agreements with Natural England, for example. The statutory and voluntary bodies may well need to enter into such agreements. It is important that there should be a power in the Bill for the statutory body to make agreements

“with commons associations, or with such persons as the council considers to represent the interests of persons exercising rights of common”.

The hon. Member for Brecon and Radnorshire kindly said that he thought that amendment No. 53 was better than his own—although he referred to it as “our” amendment, and it is mine. Never mind; he is very generous. The amendment would mean that tribunals would be appointed for the resolution of disputes. We touched on that on Tuesday in talking about the end of the commons commissioners. Although the amendment is about a slightly different aspect of the issue, it is still about resolving disputes over rights on the commons for which the statutory body will be responsible.

As the hon. Member for Brecon and Radnorshire said, we do not want to resort to the courts, although under the Bill as it is now drafted it seems that the only way of resolving disputes would be through them. Nobody thinks that a satisfactory situation, so we propose that a commons association should have the power to appoint tribunals to resolve disputes relating to their powers, although not disputes that relate to things beyond their functions.

The amendments are straightforward, but important for ensuring that statutory bodies operate according to our cross-party belief—that they should operate in the best interests of the commons and those who use them. We are anxious that the system should work, and the amendments would help it to work; that is why I tabled them.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

It is an unrivalled privilege and pleasure to serve under your wise and able chairmanship, Mr. Weir. That is enough flattery for one morning, but it might ensure that I get called later in the proceedings—who knows?

I support amendments Nos. 52 and 62, as they are sensible. They may be of a probing nature, but it is important that the Minister should have an opportunity to explain whether the powers would be available in the circumstances.

On amendment No. 62, voluntary commons associations have done an excellent job in many areas throughout the United Kingdom and nobody would wish to see them disappear. Their expertise is there, it should be used and if it is to be used on an agency basis, all well and good and I think that the Minister takes the point. He understands and said on Tuesday that he accepts they do a good job. We need to ensure, on a belt-and-braces principle, that we see whether it is possible to bring them in on an agency basis.

I wish to speak briefly to amendments Nos. 102, 53 and 103 and discuss the whole idea of establishing tribunals. The Minister may say that that exists somewhere within the Bill. I have not found it, nor has the hon. Member for South-East Cambridgeshire. I do not think that any of us have found it yet. If it does exist, all well and good. The Minister can then say on the record that it does exist. If it does not, it is a problem.

On Tuesday we touched on the idea of rectifying mistakes. Unfortunately, I am still unhappy about that because there are still many mistakes under the Commons Registration Act 1965, which are with us today and cause great aggravation—for example, when a person has wrongly registered far too many rights, ultimately causing over-grazing, and friction in the commoners association.

I am not saying that the Bill will give rise to disputes. However, the truth is that we are dealing with competing interests. On Tuesday we referred to the balance between the commoners, the owners and others who use the common for recreational purposes. It is important that some mechanism is provided for the simple resolution of disputes without recourse to the courts. That is not really a viable option because of the time it takes and the cost.

We can legislate for dispute resolutions in an alternative manner, which I think would be preferred. The amendments are good and need to be debated.

Jim Knight (Labour, South Dorset)

I cannot put more eloquently than the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) the pleasure that I have in serving under your astute chairmanship, Mr. Weir. I now beg your indulgence by asking whether I can briefly dwell on clause 27(5)(b) on which the Committee divided last Tuesday, when we met previously.

I am grateful to my hon. Friends who supported my principal argument about flexibility. I have reflected on the cause for the Division about the wording of clause 39, which we will be debating later. It would be possible for me to amend the clause to resolve the issue, but having thought clearly about our debate, I thought that it would be helpful to table an amendment on Report to amend clause 27(5)(b) along the lines of that which we discussed on Tuesday, so that we can pay greater regard to active commoners when deciding whether to set up a commons association.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for giving way and I am even more grateful for his generous words. It shows that we can lose a vote and still win, which is a novel achievement. I was fairly hard in my response to his argument on that occasion. After serving with him on a number of Committees, I have come to expect his sensible, serious and analytical approach. I am pleased that he has taken the mature approach of looking back at what took place and has realised that there was some sense in what we said.

Jim Knight (Labour, South Dorset)

I thank the hon. Gentleman for that. At one point in Committee on Tuesday, I described myself as a flexible friend and I want to continue to be one. I shall now address the matter in hand and will start by saying a few words about clause 32 as a whole. It provides for an association with wide ancillary powers so that it can carry out its functions in the most effective manner. Subsection (2) provides some examples of the activities that fall within the remit of the wide power, but it is not exhaustive in respect of the possible uses of that wide power. It is informed by subsection (1) under which an association

“has the power to do anything”.

We should be mindful of that when considering the amendments.

I am pleased to tell the right hon. Member for Penrith and The Border that, as he anticipated, amendments Nos. 52 and 62 are unnecessary because commons associations already have such powers. There is the broad power that allows a commons association to do anything that it considers will facilitate, or is conducive or incidental to the carrying out of its functions. An association can already appoint agents to act on its behalf and enter into agreements. The ancillary powers may well include appointing an agent such as a voluntary commoners association to carry out various tasks on its behalf or enter into an agreement with representatives of such an association. I hope that I have given the reassurance that the Committee wanted.

Amendments Nos. 53, 102 and 103 are unnecessary because such powers are already available toassociations. The Bill enables them to appoint a non-statutory tribunal or to undertake dispute resolution procedures, if that would assist them in their functions. As the hon. Member for South-East Cambridgeshire said, that power is limited to activities within the scope of the functions that may be given to the association. A dispute resolution tribunal established by a commons association would therefore not be able to deal with disputes concerning, for example, the registration of land or rights or issues concerning access or recreation. It would be inappropriate for it to have a formal role in resolving issues outside its remit.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

As usual, the Minister is being helpful to the Committee. In what way will the decision of the tribunal be binding on those before it?

Jim Knight (Labour, South Dorset)

As we have discussed, each association is set up with its own order, at which time I hope that dispute resolution procedures would be agreed. They could be updated if necessary. If I need to give the hon. Gentleman more information, I shall write to him and other members of the Committee unless inspiration comes to me in the meantime.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

The hon. Member for Meirionnydd Nant Conwy made a good point because the statutory body representing commons could enter into an agreement with the Department for Environment, Food and Rural Affairs, Natural England and the National Assembly for Wales about the management of the common. If one commoner failed to comply with the management agreement, that would put in jeopardy the benefits that would flow to the commoners and the common itself. Such matters are not trivial; they are important.

Jim Knight (Labour, South Dorset)

Yes. The next clause that we shall be discussing focuses on the enforcement of rules, which will have some bearing on the hon. Gentleman’s point. As I said, I may write to him or inspiration may suddenly arrive.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

While the Minister refreshes his memory, I have in my hand the fabled draft statutory instruments that we were to see today.

Dan Rogerson (Liberal Democrat, North Cornwall)

You found them, then?

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Yes, the documents were under my bed. Unless I am mistaken, I can find no reference in them to a dispute resolution, which is an important issue. I urge the Minister to ensure that there is a mechanism within the statutory instruments for dispute resolution.

Jim Knight (Labour, South Dorset)

The debate is useful, because it may inform us when we draft the rules. The rules could provide a requirement to comply with the decision of a tribunal. Obviously, the extent to which the tribunal will have authority would have to be defined, and it will depend on the nature of the dispute, but it has been useful to flush that issue out, and to find out whether we would need to put something in the rules, which will come through by order.

My hon. Friend the Member for Stroud (Mr. Drew) is not here—[Interruption.] Oh, he is here now. Very good. Well, I will look forward to hearing his wise words on the other amendments.

David Drew (Labour, Stroud)

I apologise for my lateness, but alarm clocks work only occasionally. I am delighted to serve under your chairmanship, Mr. Weir.

My amendments are purely probing amendments. I caught the latter part of what the Minister was saying about the other amendments. My amendments are simply intended to clarify the situation as regards the acquisition or disposition of land. That should be allowed to happen in a way that does not fetter any other arrangements. The amendments are really about getting further amplification on what the Government intend to do if a dispute occurs. How can it be settled amicably, rather than being fought through the courts? Will the Minister explain exactly what the Government have in mind?

The rules will be made through secondary legislation, but will there be a code of practice of some description to explain to commons associations—or committees, as we are to call them—how to go about acquiring additional land? Or they may wish to sell a piece of land when they need to raise money—hopefully, as we said on Tuesday, to replace like for like. We would certainly like to know more about that.

Jim Knight (Labour, South Dorset)

All three amendments from my hon. Friend are linked to the power of a commons association to acquire or dispose of land, as we have heard. I am grateful to him, because his amendments allow me to get certain matters on the record in respect of those issues.

The power to acquire or dispose of land is one of the illustrative powers that a commons association might use to help it achieve its purpose. We do not expect that a commons association will engage in the buying and selling of land on a regular basis, but there may be instances when it wants to make use of that power. For example, if a small piece of the common was to be sold off, the association might want to buy that land to ensure that it did not fall into what it would regard as the wrong hands, or an association might want to dispose of any land that it had acquired in order to raise funds. The land in question may not necessarily be just common land—it could be a lease on an office, for example. We need to ensure that commons associations have sufficient flexibility to carry out their functions in the way best suited to their circumstances.

Amendment No. 75 is unnecessary because a commons association, like any landowner, can create new common land under common law by simply creating rights of common over that land. It can also voluntarily apply for the registration of the land as a town or village green under clause 15, without having to show 20 years’ use. If an association were to sell common land that it had acquired, the land would remain registered common land, as is the case with any landowner selling common land. The exchange provisions in clause 16 apply to any landowner seeking an order for the exchange of land, so there is no need for a special reference to commons associations as is suggested in amendment No. 91.

My hon. Friend asked about a code of practice on how to acquire additional land. We will be working with Natural England and the Countryside Council for Wales to provide advice to commons associations on their activities and functions. We would not expect to give detailed advice on commercial matters such as land purchases; that is not for Government. However, we will seek to provide useful guidance. I hope that that helps my hon. Friend.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for his responses to the amendments in my name, and to those in my name and that of the hon. Member for Brecon and Radnorshire. I fully understand the Minister’s comment that they are unnecessary, inasmuch as clause 32(1) provides such wide powers that it covers all the other things. It is difficult to refute that, and I appreciate that the Government are loth to start adding examples to the Bill. Nevertheless, it is important that those points have been raised andthat he has made it absolutely clear that agencies, agreements with other organisations and dispute resolution are properly covered.

Although I listened carefully to the Minister, I am slightly concerned. I suspect that every Member now has a copy of the sample “Commons Associations (Standard Constitution) (England) Regulations 2006” and “West Barsetshire Commons Association Establishment Order 2006”, but nothing in either of them refers to how the associations will carry out their business. The west Barsetshire sample refers to the functions of the establishment, the application of the standard constitution, the functions of the association and the rule-making procedure—how the register will be maintained and members appointed—but nowhere does it explain how the association will carry out its functions. That is why clause 32 is terribly important.

Although I appreciate the Minister’s statement that our debate informs the drafting of those rules, it is important that the issues that we have discussed such as agencies, agreements, dispute resolution and tribunals are clearly put into the constitutions so that there can be no doubt that the associations have those powers and are expected to use them to resolve disputes. People need clarity. The purpose of the amendments was to improve association delivery.

Jim Knight (Labour, South Dorset)

I shall just add further clarification on disputes. The findings of the tribunal that the association will have the power to set up will be binding if they relate to the enforcement of rules set by the association, such as commoners’ compliance with grazing reductions, but they will not be binding on issues outside the association’s remit. I hope that that is helpful.

James Paice (Conservative, South East Cambridgeshire)

It is helpful, and it is what most of us understood. I am grateful to the Minister for his clarification. This short debate has been useful. On the understanding that the new draft rules will include those points, so that they are clear to everybody, I shall invite my right hon. Friend the Member for Penrith and The Border to undo the damage that he did in the beginning.

David Maclean (Conservative, Penrith and The Border)

I beg to ask leave to withdraw the amendment.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I rise to make one short point about clause 32. On Second Reading, I asked the Minister a question about the European convention on human rights. If a statutory association enters into an agreement on behalf of its members—we have considered the proposed standard constitution order— representation from the graziers will not be measured in large numbers of people. A small number of people will be making decisions on behalf of a large number of people. One issue was that as part of that agreement, people would have to reduce the number of animals that they graze on the common, effectively reducing their rights. How does that stand in terms of people being able to enjoy their property? We are talking about a statutory body taking a decision on behalf of individuals whose right to enjoy their property is protected under the European convention on human rights. Has the Minister considered that issue? Will he share his thoughts with us?

Jim Knight (Labour, South Dorset)

I am delighted to share my thoughts on that issue. As with all legislation, there is a statement on the face of the Bill that its provisions are compatible with the European convention on human rights. A wide consultation process, which we sketched out on Tuesday, is gone through in setting up the associations, so that all those with a legal interest are represented. That enables their interests to be heard in the association. We expect that any restriction onrights will be underpinned by an agri-environment agreement, which will compensate commoners for their loss. That is also relevant to ensuring that those rights are properly respected and that decisions are for the greater benefit of members. I hope that my response assists the hon. Gentleman, and that the clause will stand part of the Bill.

Clause36

David Drew (Labour, Stroud)

I beg to move amendment No. 77, inpage 20,line 20, after ‘authority',insert

‘after public advertisementand consideration of anyrepresentations'.

Michael Weir (Scottish National Party, Angus)

With this it will be convenient to discussamendment

No. 76, inclause 36, page 20, line 30, leave out paragraphs (c) and(d).

David Drew (Labour, Stroud)

Again, these are probing amendments. I wish toclarify the situation with regard to pre-existing schemes ofmanagement, where the Government, for whatever reason, have chosen totake action against a commons association, presumably because ofsomething it should have done or something it should not havedone.

My amendmentNo. 77 seeks to ensure that the public have a right to appeal againstany action that would damage a pre-existing scheme of management oncommon land. That is a fall-back position in terms of possible actionthat could be taken against a commons association or committee, oragainst the Government, should they choose to take action because they were unhappyabout how a particular association or committee was carrying out itsduties.

The twoprobing amendments sit together, and I want to hear theMinister’s comments on them. We should ensure that there is apublic interest in terms of the protection of pre-existing agreements,which could be changed by the nature of this legislation. We shouldalso be clear about what happens in a dispute over a pre-existingagreement and a subsequent agreement, and what the Government’srelationship would be in respect of such adispute.

Jim Knight (Labour, South Dorset)

I am grateful to my hon. Friend for allowing me toclarify matters that might have been missed. As ever, some of them arecomplicated.

AmendmentNo. 77 is unnecessary, because clause 27 already requires the nationalauthority to do what it would require. Any change or revocation ofexisting legislation affecting commons management—such as ascheme of management established under the Commons Act 1899—willbe included in the establishment order for a new commons association.In making an establishment order, the national authority is required toconsult and consider representations on the draft order. That willinclude some form of advertising of the draft order to raise awarenessamong local and other interests in the proposed order. There is alsothe scope to hold a local inquiry, if necessary. I hope that satisfiesmy hon. Friend in respect of amendment No.77.

Amendment No. 76would prevent the national authority from modifying any scheme ofmanagement established under the 1899 Act or the CommonsAct1876, where it might come into conflict with the functions given to acommons association. We expect the majority of commons associations tobe formed on agriculturally active upland commons. Therearerarely schemes of management establishedunder19th century legislation on these commons, but it issensible to have a power that can be used to resolve any conflictbetween functions that may be given to a commons association and anyscheme that does exist. For example, there are a handful ofagriculturally active commons that are subject to orders of regulationmade under the 1876 Act. While we have no reason to believe that boardsof conservators established under such orders are not workingeffectively, clause 36 is in place should the interests in the commondecide that they want to “upgrade” to more modernpowers.

In any event,in cases where a scheme of management might be varied or revoked thereis a saving for-public-access arrangement; my hon. Friend isparticularly concerned about that. Any form of public accessestablished under a scheme of management is protected by clause 36(3).That prevents the national authority from abolishing or restricting anyform of public access when using this power.

Further protection of thepublic interest is provided through the requirement in clause 27 forsubstantial support for each order that establishes a commonsassociation. The variation or revocation of any scheme of managementunder these 19th century Acts would be included within an individualestablishment order and is subject to the same test of substantial support. I hope thatsatisfies my hon.Friend.

David Drew (Labour, Stroud)

I am more than satisfied, but I wish to add onequalification. Will the Government spell out exactly how the publicinquiry apparatus would come into play? As long as that request hasbeen heard, I beg to ask leave to withdraw theamendment.

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 67, in clause 36, page20, line 41, at endadd—

‘(4) Section 36(2)(e)shall not be taken to apply to the National Trust Acts1907-1971'.

Michael Weir (Scottish National Party, Angus)

With this it will be convenient to discussamendment No. 68, in clause 44, page 25,line 30, at endadd—

‘(6) Section 44(2)shall not be taken to apply to the National Trust Acts1907-1971'.

James Paice (Conservative, South East Cambridgeshire)

These amendments are self-explanatory, and it willnot come as a surprise to learn that they have originated from theNational Trust, to which I referred in my speech on SecondReading.

The NationalTrust is renowned; everybody knows about it. Its property encompasses alarge amount of common land—about 10 per cent. of the totalcommon land in England and Wales. We are all very aware of the benefitsof the National Trust, through its work in conservation, access,recreation and so on, and many commons were entrusted to it because ofits duties and powers as laid down in the National Trust Acts. It isthe only organisation covered by those specific Acts, which range from1907 to 1971. The NT has a great worry that the provisions under clause36, as well as those under clause 44, could enable the nationalauthority—the Minister in England’s case, or the WelshAssembly—effectively to negate or abolish part or all of one ofthose Acts. I share the NT’s concerns in that regard.

The NT has many powers andduties that are similar to those of local and national parkauthorities, such as those given by the Open Spaces Act 1906. However,that Act is exempt from clause 36 but the National Trust Acts arenot.

Elsewhere in theBill, other Acts, organisations and places such as Epping Forest andthe New Forest are excluded from parts of the Bill because arrangementsare already in place for effective commons management. National Trustproperties should also be exempted. In the other place, Lord Bach gaveassurances that in practice those powers are unlikely to be used, butthe risk remains and I do not understand why the amendment cannot beaccepted so that the Bill states clearly that the National Trust cannotbe affected by ministerial order under clauses 36 and44.

As we often say inCommittee, that is not a reflection on the present Government, but wedo not know what may happen in future. As the hon. Member for Breconand Radnorshire said several times during our proceedings, the subjectof the Bill is unlikely to come back to the House for many years, so itis vital to get the provisions right now. If anyone can tell me theshape, complexion and nature of the Government in 50 or 60 years, they have a better crystal ball than I have. None of uscan foresee how a future Minister might use the powers in the Bill andit is important to make the matter clearnow.

The NationalTrust has given an example of where there might be conflict. Heatherburning might conflict with the trust’s management objectives ofconserving habitat, restoring soil and so on, but under the clause theMinister could order the National Trust Acts to be amended so that thetrust could not manage vegetation without the statutory commonsassociation’s consent. The National Trust would not be able tocarry out conservation management if the statutory commons associationdecided that it would not facilitateagriculture.

TheNational Trust Acts are unique and it is right that they should remainso, which is why I was happy to table these amendment on behalf of theNationalTrust.

David Drew (Labour, Stroud)

I shall be brief. Will the Minister say somethingabout disputes that might occur between a commons association orcommittee and the National Trust? That is not entirely outwith myexperience inmy constituency where the National Trust has,understandably, acquired land on the now renowned Minchinhampton commonwhich has not had clear ownership. That has led to a dispute withpeople living on and around the common. It is possible that ifrepresentation were made by the commons association or committee andincluded representatives of householders in the local community itwould be in dispute with the National Trust. This is a hideouslycomplicated legal minefield involving my usual friends, easements, andit is more than that because it is an ownership dispute.

Part of the problem withcommons is that when there is no clear owner the nature of the modernworld is to try to find one. When the National Trust is the mainmanager, if not the owner of the whole common, the obvious owner whoshould be allowed to acquire that right is the trust, but that can leadto conflict. Will the Minister explain how such conflict could beresolved without going through the courts? Sadly, the latter couldhappen in my area. Such an explanation might ease my concerns andclarify the situation.

Dan Rogerson (Liberal Democrat, North Cornwall)

I welcome you to the Chair for our proceedings,Mr. Weir. I support the thinking behind the amendment. In myconstituency of North Cornwall, the National Trust manages significantareas of land, particularly along the coastline. Given the existingsystems of management and well established relationships withorganisations in the community, which are recognised and have operatedwell for a number of years, it would seem odd if a commons council,association or whatever it may be called, were to vary the managementsystems for part of an area of common land that cuts across land thatis owned—land which might sit in the middle of an area of landmanaged by the National Trust. I hope that we preserve the schemes thatare already in place and allow them tocontinue.

Jim Knight (Labour, South Dorset)

I am grateful for the amendments because theypresent another opportunity to explain our position on something thathas occupied those in the other place. I am meeting the chief executiveof the National Trust shortly, and I am sure that it will be a subjectfor conversation on that occasion as well.

Any provision made under clause36 would be made through an establishment order, which establishes acommons association. An order cannot be made unless there issubstantial support for it, having regard to the views of key interestsin the common. That would include the National Trust in its capacity asowner or as the body with statutory functions relating to themanagement of the land. If the trust had significant objections, theSecretary of State would be most unlikely to make an order, so in thatrespect the interests of the trust areprotected.

Dan Rogerson (Liberal Democrat, North Cornwall)

Will the Minister giveway?

Jim Knight (Labour, South Dorset)

There is plenty of argument still to come, but Iam always delighted to giveway.

Dan Rogerson (Liberal Democrat, North Cornwall)

I am grateful to the Minister for giving way. Iunderstand that the National Trust, as a significant landowner, wouldhave a role to play in the setting up of such a body. However, once inoperation, if relationships were to change slightly, issues might ariseand there could be disagreements further down theline.

Jim Knight (Labour, South Dorset)

Yes, there may be disagreements further down theline, but we must consider whether we make an exception for theNational Trust, as opposed to any other legal interest in the common. Iwould argue that it is difficult for us to do so.

My hon. Friend the Member forStroud asked about disputes between a trust and an association. Mostdepend on the nature of the dispute and it probably would not be amatter on which the association has any jurisdiction. I regret that itwould normally be a matter for the courts, but I hope that theformation of associations—happening with the NationalTrust’s consent—would bring the interests in the commoncloser together, generating a better understanding, meaning that thosedisputes would be less likely to arise.

The difficulty is that in thediscussions we have had here, in the other place and at official level,no one has yet specified what in the National Trust Acts might beamended under the powers in clause 36, or why. The purpose of a commonsassociation established under part 2 in relation to National Trustcommon land would be to promote the better management of the common.What purpose could we have in seeking to diminish any protectionafforded to that land by the National Trust Acts? There seems to be anunderlying perception that commons associations would be an unwarrantedinterference with the National Trust management of common land and thatthey are not needed. That cannot be right. Until recently, fewerNational Trust commons were achieving the public service agreementtarget than commons nationally, and the establishment of associationson such commons can only assist rather than hinder the achievement oftarget conditions.

It is highly unlikely that wewould wish to useclause 36 to make amendments to the NationalTrust Acts. There is even less need in relation to clause 44, becauseschedule 4(3) does the job already. We could introduce an amendmentthat in effect “Nothing in this clause shall apply to theNational Trust Acts 1907 to 1971.” We could equally say,“Nothing in this clause shall apply to the Greenham and CrookhamCommons Act 2002.” We could exclude the clause’soperation from any of 10,000 local and private Acts that have beenpassed since the end of the 18th century, and any of whose promoters fear that clause 36 could be used to interfere with their own legislation.

Should we exclude from thescope of the clause the Malvern Hills Acts or the DartmoorCommonsAct 1985? Why draw the line at making specialprovision for only the National Trust? It owns large swathes of myconstituency, and it is a great and special organisation; but can wejustify the precedent of an exception?

Public, general Acts ofParliament contain numerous provisions similar to those in clause 36.They are required because of the vast number—10,000 orso—of local and private Acts, and the impossibility of knowingwhat is in them. The powers will be exercised seldom, carefully andafter proper consultation with the trust and others, and they shall besubject to parliamentary oversight. It is true that several Acts ofParliament contain savings for the benefit of the National Trust, butthose savings are concerned essentially with the inalienable status oftrust land, and that status has never been under question in theBill.

The hon. Memberfor South-East Cambridgeshire referred to the New Forest and othersexcluded from the operation of the Bill, and asked, so why not theNational Trust? The New Forest is not exempt from the scope of the Billas a whole; part 3, for example, applies to it. It is exempt from part1, because its own registration system preceded the 1965 Act. In thatregard, it is appropriate to make that exemption.

I hope that that helps theCommittee and persuades the hon. Gentleman to withdraw hisamendment.

James Paice (Conservative, South East Cambridgeshire)

The Minister’s response has been robust, and that is no criticism. I was surprised when he said that nobody had produced any ideas or suggestions about where the situation might arise, because that was the purpose of my example, which the National Trust provided. A future Minister might want to confer a function enabling a statutory association to manage vegetation for agricultural purposes, and we would then encounter a conflict about the issue of heather management.

Jim Knight (Labour, South Dorset)

Perhaps I should have specifically addressed that issue. We believe that the National Trust has no more or less power to manage the vegetationon a common than any other common owner. Notwithstanding the National Trust Acts, clause 36 could not therefore affect the position.

James Paice (Conservative, South East Cambridgeshire)

To save time, the Minister said earlier that he will shortly meet the chief executive of the National Trust. The amendments were tabled at the trust’s request in order to air the issue, and it believes that the amendment ought to be made. However, I shall not press it. I do not know when that meeting is likely to take place. If the Minister can ensure that it takes place before Report, we will have the feedback. If he can allay the chief executive’s concerns, all will be well. Otherwise, we might want to return to the issue on Report. The Minister is nodding in agreement to that approach, and on that basis I beg to ask leave to withdraw the amendment.

Clause 37

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I rise to make the same point that I made on clause 26, which concerns the establishment of a statutory commons association. The point I made then was about who has the power to initiate or make such an application. I believe that the Minister replied not to that point, but to a point that he wanted to make. The issue is about who can make an application for variation or revocation of establishment orders, because somebody could make a malicious or vexatious application to the Department for Environment, Food and Rural Affairs, to Natural England or to the National Assembly for Wales. Unless there is a limit on people who canmake applications, then commons associations and commoners could have a huge amount of work imposed on them, as could the Minister’s own Department, so the Bill should say who can apply for establishment orders and who can apply for revocation.

Jim Knight (Labour, South Dorset)

As I have sought to articulate at all stages of the Committee, we see establishment as a bottom-up process. On variation and revocation, the powers set out in clause 37 allow the national authority effectively to wind up a commons association in three situations. We do not want to set out a formal procedure; we expect Natural England, or the Countryside Council for Wales, to draw matters to our attention—as the champions for commons—when they think that there are problems, but we do not want to give them formal statutory powers. If they think that there are considerable problems in the way that an association is fulfilling its duties or exercising its powers as set out in the Bill, we would expect them to inform the relevant national authority, and if that authority decided that it needed to take action, it would be able to do so under the clause. We need to retain the flexibility that we have currently, however.

Clause 38

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 54, inpage 21, line 27, after ‘of', insert ‘materially'.

Michael Weir (Scottish National Party, Angus)

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

No. 55, in clause 38, page 21, line 31, after ‘of', insert ‘permanent'.

No. 56, in clause 38, page 21, line 33, at end insert—

‘(d) the parking of vehicles used as accommodation.'.

James Paice (Conservative, South East Cambridgeshire)

We now move on to part 3 of the Bill, on protection of commons, which is a very important aspect of the legislation. Clause 38 is about prohibition of works without consent, but it is clear from subsection (1) that the relevant consent is that of the appropriate national authority, which effectively means the Minister, and I think that most people would say that a sense of proportion is needed regarding which issues should go to the ultimate decision-making point of a Whitehall Minister, when both the common and the issue concerned might be very small.

Amendments Nos. 54 and 55 therefore seek to introduce a de minimis position and a sense of proportionality on some aspects, as do certain later amendments that could equally have been grouped with these, and to which I shall refer later.

Amendment No. 54 would simply insert the word “materially” into the sentence that defines restricted works—works which require consent—as

“works have the effect of preventing or impeding access to or over any land to which this section applies.”

The Country Landowners Association has suggested inserting the word “materially” before the word “preventing,” to prevent vexatious litigation and delay through someone saying that a minor work has impeded access, when the work may be an urgentand sensible piece of commons management. The regulatory and, dare I say it, bureaucratic process of seeking Government consent will be considerable, and the amendment deals with that.

Amendment No. 55 was touched upon on Second Reading. It refers to fencing. Obviously nobody wants to fence off a common permanently. It is reasonable that permanent fencing should require consent, because it seriously undermines many of the attributes of much, although by no means all, common land.For example, there are fenced commons in my constituency. However, there is a distinction between that sort of permanency and the temporary arrangements using electric fencing, for example, which may be necessary to keep stock off roads.

We discussed on Second Reading how much road traffic has increased and developed since commons were invented. Not too many sheep were run over by horses and carts, but they are more likely to be run over by a Harley-Davidson roaring across the common, as I have seen in my constituency. Sometimes, there is logic in requiring an electric fence to prevent stock from straying on to roads. However, the converse is using electric fencing to prevent stock from straying into areas of a common that, for conservation purposes, it may be right to exclude them from. Such fences may be used to keep stock off private property, which is a matter of common sense, although arguably it is the private landowner’s responsibility to fence stock out. Lots of gardens and drives open on to common land. However, it may be simpler to erect an electric fence, rather that facethe major issue of constructing permanent fencingon private land. The amendment would insert proportionality into the Bill so that the Minister and his officials are not besieged by requests for miniscule works.

Amendment No. 56 is slightly different; I touched on its subject on Second Reading. It would insert in subsection (3) reference to the works that need consent, especially

“the parking of vehicles used as accommodation.”

I am aiming this measure at Travellers. In my constituency, we have the serious problem, which is not unique, of Travellers parking on common land and often leaving a dreadful mess behind, if they ever leave. It is difficult to remove them.

The amendment would not change the law on the illegality of parking on common land—I am not suggesting that it does—but by including a provision requiring people to get consent from the national authority in charge of commons before parking a caravan on common land, it adds emphasis to the perception that what they are doing is illegal. It takes the matter beyond planning consent and the powersjof the local authority—the planning authority—to national consent through the Government.

The amendments are straightforward and designed to improve the basis on which the prohibition applies. I should be grateful if the Minister agreed to them.

David Drew (Labour, Stroud)

I concur with the hon. Gentleman on the last thing he said about amendment No. 56, which makes a lot of sense. However, I am concerned about amendments Nos. 54 and 55. If things are only referred to as permanent—through the Secretary of State or his representative—it prompts the question of whether anything temporary will be allowed to exist for a significant period. All hon. Members can provide instances of something that was agreed to on a pro tem basis, but became effectively permanent because action was never taken.

I urge the Minister to clarify what is meant by the words “temporary” and “permanent”, if that is possible. Also, I urge him to withstand the honeyed words of the hon. Member for South-East Cambridgeshire, as there are some dangers in laying down something that would make it difficult to intervene when clearly there has been a problem.

James Paice (Conservative, South East Cambridgeshire)

I understand the hon. Gentleman’s concern. Obviously, it would be unacceptable if a temporary fence—an electric fence, for example—became permanent because it was left in place for umpteen years. He is right about that, but I contend that the Bill as drafted allows for that. I am tryingto insert the word “permanent” in subsection (3), which lists particular examples of restricted works. Subsection (1) states that restricted works may not be carried out without consent. I would argue that the structure of subsections (1), (2) and (3) means that if something is considered permanent because it has been there for some time, representations could be made to the Minister to say that it is not temporary but outside the exemption created by my use of the word “permanent”, and the legality of that fence could be challenged at any stage if it appeared to be permanent but did not have consent.

David Drew (Labour, Stroud)

That is why we need the Minister to arbitrate on exactly what the terms mean. I understand what the hon. Gentleman is trying to do, but there are dangers that one could diminish the power to take action because of a lack of clarity about the grounds for referring cases to the Secretary of State. I hope that the Minister will put my fears to rest, and I urge him to stand firm on the clause as drafted.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I support the amendments simply because we are creating a new body of law thatis practical. The hon. Member for South-East Cambridgeshire referred to instances when temporary fencing is needed. For example, in conserving biodiversity, grouse moors and so on, there are times when under-grazing is a problem but also times when over-grazing is a problem. It is not reasonable to expect somebody to apply for permission each season. All the expense and trouble will put people off getting involved in management procedures if they need to take that route each and every time.

Some examples have been given of why one might need temporary fencing. I shall offer one or two others. As a consequence of the foot and mouth debacle, many thousands of hefted sheep have been lost from the uplands. Hefting of sheep is not easy—it does not happen overnight—and commoners have to put up fencing to re-heft sheep, if that is the right term. If commons are to work, they need hefted sheep, but it is obvious sheep cannot be re-hefted on most commons without fencing. Those of us who live near common land see that day in, day out. It is a necessary consequence of looking after living commons, which I hope we will achieve by virtue of this Bill.

The point of the exercise is to ensure that the procedure is simplified. I do not in any way want people wrongly to fence off commons permanently—that is not right, and none of us wants it. If somebody wants to install a permanent fence for special reasons, he or she must apply for full permission. That I fully understand, but this is an entirely different kettle of fish.

I mentioned nature conservation. There are times when common land is improved, or even when parts of it are reseeded, and that is all to the good. One needs to fence in areas during reseeding. I am sure that there are many other examples.

David Drew (Labour, Stroud)

But surely those are just the cases on which a commons association or a commons committee would get consensus or agreement and therefore there would not be any difficulty. We are talking about cases where there clearly is a dispute.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

No, there is not.

David Drew (Labour, Stroud)

Well, it could well be that these are particular cases where disagreement arises, which is why, as a failsafe, we can go to the Secretary of State.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am not terribly keen on pushing cases through to the Secretary of State and the National Assembly for Wales. They have enough to do already. According to what I have just heard, some people might not take the cases there, but that is a fresh political point.

I am talking about prohibition on works without consent. It is an absolute prohibition. I agree with what others have said eloquently, which is that we need flexibility to allow temporary measures to be taken. That is all the clause is about, and no more and no less. It is not a back-door means of evading the Act. However, the hon. Gentleman’s reading of the clause is slightly erroneous. It is not do with disputes as such, but with restricted and prohibited work.

I fully agree about the parking of vehicles to be used as accommodation. We all know examples of that. I have no axe to grind with the Traveller community. Part of the problem is that local authorities do not provide sites for them, and that happens throughout England and Wales.

Dan Rogerson (Liberal Democrat, North Cornwall)

During the debate on the parking of vehicles foraccommodation purposes, I was struck by something that seems to behappening more in Cornwall. I refer to the parking of vehicles that areused effectively for signage in that signs are painted on the sides ofvehicles presumably to get round planning regulations. Does the hon.Gentleman think that it would be helpful for the Minister to come backon thatissue?

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

It is right and proper to raise the matter in thedebate, but I believe that that is more to do with planning law.However, no doubt the Minister will address the issue when he sums upthe debate. It was a good point.

It has also been put to methat, under clause 38(3)(c), there should be an ability, albeitlimited, for ditches and wooden posts to be erected on the perimetersof commons and village greens to prevent 4x4 vehicles from beingunlawfully driven across land and to stop joyriders and so on. Thatwould also deter wholesale fly-tipping. I do not know theMinister’s view, but we all know that it is a major problem. Itis a major problem in parts of south Wales, as it is inmanyareas. It destructs grazing land, the natural environment and itaffects biodiversity. What would the hon. Gentleman do to prevent 4x4vehicles from encroaching where they should not? No one wants thepublic’s access to be impeded, but it is a point that might wellbe considered.

Ishould like the Minister’s view on another representation that Ireceived. If he cannot respond to it today, perhaps he will drop me aline. For the first time, the provisions would prevent mineral workingfrom taking place on common land without the consent of the Secretaryof State or the National Assembly for Wales. I have been advised thatthat might be undesirable for two reasons. First, it is an additionallayer of regulation in that planning permission is still requiredbefore such activities are carried out. The planning regime is moreappropriate for such consideration. Secondly, the test would have to bewidened to take into account conservation, public interest and public access issues before such consent can begiven, and that may be inappropriate under the Bill. I should begrateful if he could comment in duecourse.

The amendmentsare sensible, because they introduce an element of proportionality.That is important, because we want a regime that is regulated, butnevertheless practical, and that allows for commons to be living and tobe maintained for the commongood.

David Maclean (Conservative, Penrith and The Border)

I rise to support the amendments tabled by myhon. Friend the Member for South-East Cambridgeshire, and to give mystrong support to the comments made by the hon. Member for MeirionnyddNant Conwy on the need for occasional temporary fencing to deal withpractical farming problems on commons. There is no philosophical orpolitical divide on this issue, and the hon. Member for Stroud has gotthings slightly wrong—one would not want to go to the Ministerto settle disputes. What we are talking with regard to reseeding is asituation in which all the commoners agree to reseed a few acres ofland and that they should have a temporary fence, such as an electricfence, in place for a few months until the grass seedtakes.

If commonershave to go to the Minister on every occasion that they want a fewhundred yards of electric fence for a few months until the grass seedtakes, he will be very busy. I come across such cases all the time.There are hundreds of miles of stone walls in Cumbria that run overcommons, and most of them are fairly clapped-out; indeed many of themfall down. At the moment, farmers who go out in the morning to checktheir lambs may see that a few yards of stone wall have fallen down andthat sheep are pouring through. They are not going to bring in theEnglish dry stone walling champion Steve Allen from Tebay, who charges£13 a yard; they will fix it themselves over the following fewweeks. Every time they go out to feed the sheep in the morning, they doa little bit of stone walling and, in the meantime, they stick up fiveyards of fencing round the gap in the wall to stop the sheep and lambsgoing through.

Isuspect that that is happening at this precise moment in Cumbria, andit happens every day of the week. If a bit of temporary fencing to pluga gap in the stone walls has to be the subject of an application to theMinister, he will get 20 applications a week from Cumbria alone. Thatis not what will happen, however. Instead, the requirement will just beignored, and I do not think we should have a law on the statute bookthat is ignored because it is practically impossible tooperate.

I am not surethat the term “permanent,” as usedby my hon.Friend the Member for South-East Cambridgeshire, is the right, or thebest, word. However, that part of the Bill that deals with the erectionof fencing is unworkable in practical farming terms. We shall have toexamine it again and consider either having definitions of the words“permanent” or “temporary” that are not asthreatening as the hon. Member for Stroud believes, or making thedefinition of fencing erection a bit more wordy so as to explain that temporary, short-gap fencing to deal with holes in stone walls, orfor reseeding, ispermitted.

There arenumerous other examples of temporary fencing. On the Pennine fells,there were 2,000 lead mines, meaning that there were 2,000 verticalholes in the ground where people dug down 50 to 60 ft until they hitthe lead, and then tunnelled along a bit. Nearly all those holes arecapped now, so that not too many people fall down them. However, theodd sheep disappears. When farmers go out on the fells and they find adeep hole like that or a wet boggy bit that sheep go into and never getout of, they are not interested in erecting miles of fencing. They wantto put up five or six yards of fence around the wet boggy hole untilthe farmer can do something about it. If we have to go to the Ministerabout a bit of fencing round a wet hole in the ground or a crevice thathas materialised, he will be verybusy.

I do not havethe solution, and I am not sure that my hon. Friend’s word isexactly the right one to deal with the problem without driving a coachand horses through the law—the concern of the hon. Member forStroud—but the point will have to bereaddressed.

Jim Knight (Labour, South Dorset)

The amendments are the first that the Committeehas considered on part 3 of the Bill. Before I comment on them indetail, and with your indulgence, Mr. Weir, it may be helpful if I givesome background explanation of the works control system that is thetheme of most of this part of theBill.

The regime datesfrom the fundamental reform of property law undertaken in the early1920s and culminating in the Law of Property Act 1925. Strong concernwas expressed at the time that, as a result, commons would becomeclosed to both commoners and the public and would turn by default intoordinary private land. The result of that fear was sections 193 and 194of the 1925 Act. Section 193 introduced a public right of access forair and exercise to commons in urban districts and boroughs.

The original plan was to makeall commons subject to those access rights, but that plan metopposition in the other place, so a compromise was reached that ruralcommons were not to be subject to express rights of access under thelegislation. Instead, section 194 provided that, on all commons,fencing or works that would prevent or impede anyone’s accesswere unlawful without the prior consent of the Secretary of State.Section 194 has made such provision ever since, with the result that,by and large, a wonderful national resource remains largely open,unspoiled and suitable for the exercise of common rights and publicenjoyment, and as a fantastic pool of landscape, wildlife and heritagefeatures that I know all Committee members seek to celebrate and allowto continue.

Theregime in part 3 is substantially the same as the one in section 194,which it will replace. However, it updates the controls in certainspecific ways to make them clearer and more consistent, particularly onwhat types of land are covered by the regime and what types of worksare exempt. For example, the present controls apply only to land subject to rights of common in 1926. As time goes on,that becomes more and more difficult to establish with any certainty.The Bill will create a clear link between works controls and landregistered as common or, in some cases, exempted from such registrationin the 1960s.

Finally,the Bill will ensure, as far as possible, that when the nationalauthority’s consent is required for works on commons, a uniformset of criteria will guide their determination. That is not thesituation at present. I hope that those remarks are helpful in settingthe scene for part 3, which had proportionally less scrutiny in theother place than the other partsdid.

I am afraid thatour view of amendment No. 54 has not changed from the view that we tookin the other place. Adding the word “materially” wouldsimply make the provision more difficult to interpret. There would beall manner of debate about what “materially” meant and towhom. Different landowners, enforcing authorities and members of thepublic would take different views on the subject.

It is unlikely that trivial orinsignificant works on commons would be regarded as contraventions ofclause 38 as it is now worded any more than they are under identicalwording about preventing or impeding access in section 194 of the 1925Act, which has stood the test of time for more than 80 years. It iseven less likely that a county court would make an order against suchtrivial or insignificant works in the event that it was asked to doso.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

What the Minister says is right—the countycourt will not make an order in a de minimis situation—but somemember of the public will undoubtedly take it upon him or herself toinitiate the proceedings, causing delay, cost and everything else to nopoint. That underlines the need for theamendment.

Jim Knight (Labour, South Dorset)

I listened to the hon. Gentleman with care, as Ialways listen to the hon. Member for South-East Cambridgeshire—Iwould not want him to feel left out—but I return to the problemof defining “materially”. The Bill includes a mechanisminclause 43 to exempt certain works from clause 38 and takethem en masse, but I shall come to that in a moment. I encourage thehon. Member for South-East Cambridgeshire to withdraw amendment No.54

Amendment No. 55would also create definitional problems. In the end, no fence ispermanent. While supporting the amendment, the right hon. Member forPenrith and The Border made this point to some extent: all fences falldown in the end and need to be replaced. The amendment’sformulation might result in the outcome that no fence at all requiredconsent.The hon. Member for South-East Cambridgeshirementioned electric fencing, which might appear to be more temporarythan other forms of fencing but which can be just as much of animpediment to access as permanent fencing.

Standing Committee D

Clause38

Michael Weir (Scottish National Party, Angus)

I remind the Committee that with this we arediscussing the following amendments:

No. 55, in clause 38, page 21,line 31, after ‘of', insert‘permanent'.

No.56, in clause 38, page 21, line 33, at endinsert—

‘(d) the parking ofvehicles used asaccommodation.'.

Jim Knight (Labour, South Dorset)

I was talking about electric fencingwhen we stopped, and I hope that I had said enough to persuade theCommittee and the hon. Member for South-East Cambridgeshire (Mr. Paice)that electric fencing can be just as much of an impediment to access aspermanent fencing. We remain concerned that we should not exclude itspecifically.

I wastalking about amendment No. 55 and the definitional problems that theword “permanent” might present. In any case, we do notsubscribe to the premise that what one might call temporary fencingshould simply be left out of the scope of the controls.

I have a note in respect of thecontribution from my hon. Friend the Member for Stroud (Mr. Drew), whoI am pleased to see returning to his place, that says that we all knowof cases where stables on sleds are claimed to be temporary underplanning legislation but remain in place for years. I personally wasnot familiar with stables on sleds, but there are all sorts of ways ofconfusing the notion of things being temporary or permanent. We need totreat the whole subject with some care.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I shall notdelay matters, but given that the Minister has just said that theamendments do not find favour with him, could he tell the Committeewhether it is possible to fast-track such applications? In other words,what is involved in getting the necessary consent, how long will ittake and what is the cost involved?

Jim Knight (Labour, South Dorset)

I am grateful for that question. Recently, anexcellent code of practice was published with endorsement from variousbodies including English Nature, the Countryside Agency, the NationalTrust and the Open Spaces Society. It sets out useful guidelines on howcontroversy can be minimised and co-operative working maximised whenphysical changes such as fencing on a common are being contemplated sothat that fast-tracking can occur. We will be considering andconsulting on whether the power in clause 43 should be used to exemptworks of any particular character from the clause 38controls.

I noted,for example, the comments from the hon. Member for Meirionnydd NantConwy (Mr. Llwyd) about restocking after foot and mouth disease andabout hefted flocks. It might be possible—I do notknow—to use clause 43 to make some exemptions.

Generally, we cannot sensiblyput fast-tracking on the face of the Bill. We want to ensure that theprocedures are appropriate and proportional. Views differ widely aboutwhether works are beneficial and a fast-track system per se mightamount to pre-judging the merits of an application and run the risk ofunfairly sidelining one of the those views. We hope that we have theright balance and that the use of the code of practice willhelp.

Philip Dunne (Conservative, Ludlow)

I am grateful for theopportunity to serve under your chairmanship,Mr.Weir.

I want to drawto the Minister’s attention to a case just outside myconstituency, at Llynclys common in North Shropshire. An applicationwas made by the Shropshire Wildlife Trust, which manages part of thecommon, to erect fencing to protect biodiversity and to reintroducegrazing after the common had been under-grazed for a number of years.It took a total of three years to get the necessary consents, includingthe consent of the Secretary of State, and the process was eventuallycompleted in 1998. Obviously, it is conceivable that procedures havebeen speeded up in the past few years, but I have my doubts. Someguidance needs to be provided on the question of fast-tracking and howlong it will take in practice.

Jim Knight (Labour, South Dorset)

I am certainly interested in such examples, wherethe delays and periods of time taken to process applications areunacceptable. My officials and I would want to ensure that we can dealwith such issues as speedily as possible. If controversy has beenminimised at the point of application, that makes things considerablyeasier and moreachievable.

James Paice (Conservative, South East Cambridgeshire)

Before theMinister moves on to the last amendment in the group, which is slightlyseparate, I shall challenge him, having listened to what hesaid.

The Ministerdoes not seem to believe in any sort of de minimis situation, to repeata phrase that I used earlier. My right hon. Friend the Member forPenrith and The Border (David Maclean) referred to a temporary bit offencing to seal a hole in a wall during repair. Is it really theMinister’s view that everything, apart from any exemptions thathe may come up with under clause 43, should go to the Secretary ofState? Fundamentally, I was trying to introduce a sense of proportion as towhich things must undergo the inevitable panoply of time andbureaucracy involved in going to the Minister or the Secretary ofState.

Jim Knight (Labour, South Dorset)

I understand that the hon. Gentleman’sintention is sound. I agree that we need to make things as efficient aspossible. As I said before lunch, it is very unlikely that trivial orinsignificant works on commons would be regarded as contraventions ofclause 38 as it is worded, because it uses the same wording as section194 of the Law of Property Act 1925. During the last 80 years, we havefound that there is effectively some de minimis, and the courts are notwilling to take action if frivolous, minor pieces of work are broughttothem.

James Paice (Conservative, South East Cambridgeshire)

But as the hon. Member for Meirionnydd Nant Conwysaid this morning, we do not want to find out whether the court willact on it. By the time such a case gets to the court because somebodyhas raised a complaint, the commons association or whoever did thatminimal work has gone to the huge cost of employing legal advice andrepresentation, not to mention the cost to the public purse oforganising the court. We are trying to avoid all that. Simply sayingthat the court will not listen to the complainant and will find againstthem rather than the person who did the work is not really the samething. We are trying to prevent that situation from arising in thefirstplace.

Jim Knight (Labour, South Dorset)

I have no desire for people to go to court unlessthey need to. The balance of judgment is whether the Committee believesthat a great queue of people are waiting for the opportunity to reportlandowners to court for undertaking the most trivial of works, and thatwe therefore need to pin the matter down in legislation, or whether itbelieves that we need to keep our present flexibility and therÃ(c)gime that has served for the past 80 years. To get into theproblems of defining words such as “permanent”, inrespect of fencing, puts the balance in the wrongplace.

David Drew (Labour, Stroud)

I am now in thefortuitous position of having the National Trust briefing, which I didnot have earlier, so I have greater sympathy with what the hon. Memberfor South-East Cambridgeshire is trying to do. As the right hon. Memberfor Penrith and The Border said, the issue is the definition of“permanent”. I could be persuaded if there were a way todefine what is likely to be referred to the Secretary of State withoutusing the word “permanent”. That sounds as though itwould not allow any discretion, and I always prefer to avoid going tocourt. The Minister might be able to consider that. Surely a positioncan be arrived at between mine—I want some greaterprotection—and that of the Opposition, who want to allow work tobe done without going to somebody further up theline.

Jim Knight (Labour, South Dorset)

A position can be arrived at. It can be arrived atby using clause 43. If we can identify a form of fencing, for example,that does not prejudice the open character of the commons but achievesthe sort of effect that we have discussed—protectingbiodiversity or protecting people from falling down deep holes inCumbria—it might be appropriate to make a blanket exemption through clause 43 for that sort of work. Thatis why I am talking about flexibility, which the clauseprovides.

James Paice (Conservative, South East Cambridgeshire)

Would that include the possibility of a timescale? Does the Minister envisage that clause 43 will exemptworks—an electric fence, for example—that is only therefor six months? Could a time scale be part of anexemption?

Jim Knight (Labour, South Dorset)

I can perhaps reflect on that, and get someadvice about it. You never know, I might come up with an answer beforetoo long, or by the time we come to clause 43, given that we are nowdiscussing clause 38. We shall see. We shall have time to have anotherlook at the matter when we have finished the Committeestage.

Amendment No.56 is an ingenious proposal. I am tempted to say, “Nicetry,” but that would trivialise what I know is a seriousproblem, especially in respect of Travellers’ vehicles. Iimagine that the majority of Committee members would sympathise withthe wish to deal with such problems when they occur and powers are inplace to enable local authorities to tackle them. For example, localauthorities can make byelaws, which are regulated under the Inclosure Acts or use their own local Acts. They may even make use of the offenceagainst camping on urban commons under section 193 of the Law ofProperty Act 1925.

Amore recent measure, part V of the Criminal Justice and Public OrderAct 1994, especially sections 62A to 62D, also deals specifically withthe problem. Those provisions were inserted into the 1994 Act by theAntisocial Behaviour Act 2003 and create new powers and procedures fora senior police officer to remove such vehicles from the land inappropriate circumstances. Section 62D ensures that the powers areexercisable specifically on common land. They have been available sinceFebruary 2004 and I am sure that members of the Committee willencourage their local authorities to use them.

We all want new measures to bein statute, but the problems arise when local authorities do not usethem. I am not enthusiastic about adding more measures if localauthorities are not using the existing legislationadequately.

The hon.Member for North Cornwall (Mr. Rogerson) raised the matter ofvehicles advertising things. I agree with the hon. Member forMeirionnydd Nant Conwy that it is probably a matter for the planningauthority and the planning rÃ(c)gime, and happily I am notresponsible for it.

The hon. Member for MeirionnyddNant Conwy also mentioned 4x4 vehicles. Works that present noimpediment to able-bodied people in trying to address the problem mightnevertheless impede the disabled; other works might impede horseriders, those exercising common rights and, dare I say it, even thosewho are lawfully allowed to drive on the commons. I argue that theclause as drafted ensures that all these issues are considered and donot get overlooked. However, perhaps someone will come up with aningenious device that will put a constraint on 4x4s if they are causinga problem and churning up the common, but allow the other users, whomwe want to be able to enjoy the commons, to do so. If such a device is found and isseen consistently to work, clause 43 can be used in that respect.Exemptions will be for minor and temporary works, so a time scale isinherent in the concept that lies behind clause 43. I hope that thathelps the hon. Gentleman.

On the matterof mineral workings, which the hon. Member for Meirionnydd Nant Conwyraised, consent is needed for almost all significant works on commons.We consulted with the industry before removing the general exemptionthat was granted 80 years ago when works control on commons as a wholewas first introduced, but which we cannot now justify sustaining.Clause 38 consent will not be needed for mineral workings that alreadyhave planning permission when the Bill becomes law, provided that theterms of the permission are complied with. That is so even if the timelimit for implementation of the permission is extended. I hope thatthat helps the hon. Gentleman and I also hope that, on that basis, theamendments will be withdrawn.

James Paice (Conservative, South East Cambridgeshire)

I shall not detain the Committee by going back over amendments Nos. 54 and 55; we have probably gone as far as we can on those two. I understand the Minister’s points, but I hope that we can find a way through clause 43 to ensure that we do not have to have recourse to law to deal with what I would consider to be vexatious or minimal issues—those brought by somebody who has a bee in his bonnet and wants to pursue it. It is all very well to say that the courts do not have to find for the complainant; that is small comfort for a defendant who has been caused a lot of trouble, inconvenience and cost. Perhaps we can return to that under clause 43 or outside the Committee. If we cannot, we will have to do so on Report, because important issues arise from the temporary nature of some actions.

On amendment No. 56, which concerns Travellers, I am glad that the Minister did not read out the first comment that he was going to make. That would have trivialised an important situation. As one of many Members who have such problems, I am very familiar with the legislation. It is easy for a Minister to read out all the legislation that exists, but some of us know that it does not work like that on the ground. The 1994 Act, which my right hon. Friend the Member for Penrith and The Border piloted through the Committee stage as Minister of State in the Home Office, made significant changes, and as shadow Minister for the police I was instrumental in persuading the Government to make further changes in the context of the Anti-social Behaviour Act 2003.

As far as common law is concerned, the lord of the manor is still required to agree the removal of Travellers before the police can do anything. That is often the stumbling block, particularly if he is not easily contactable or, for some reason, is unwilling to take action. I am simply trying to underline the fact that the situation is illegal and there are still serious issues to be addressed. At this very moment, there are commons in my constituency that have Travellers on them, and there are serious difficulties in removing them, despite all the attempts to legislate. We should not trivialise the issue in any way.

We have had a good debate on an important matter, and there are further amendments to be debated under this clause, so I beg to ask leave to withdraw the amendment.

Jim Knight (Labour, South Dorset)

I beg to move amendment No. 9, in clause 38, page 22, line 7, leave out from ‘are' to end of line 8 and insert

‘carried out under a power conferred in relation to that particular land by or under any enactment;'

Michael Weir (Scottish National Party, Angus)

With this it will be convenient to discuss Government amendments Nos. 10 to 13.

Jim Knight (Labour, South Dorset)

I will attempt to be brief. Normally, under clause 38, proposed works that would impede access to or over common land would need the prior consent of the national authority. Such works might include fencing, building, surfacing or earth works. Subsections (6)(a) and (6)(b) exempt a particular type of work from that requirement. Amendments Nos. 9 and 10 are designed to emphasise the fact that in order to be exempt in that way, works must be carried out under a power conferred by or under an enactment—for example, those undertaken by a statutory board of conservators. Amendment No. 12 is consequential.

Amendment No. 11 relates to commons management schemes made under the Metropolitan Commons Act 1866 or the Commons Act 1899. Essentially, such schemes give conservators in the first case, or district councils in the second, powers to manage commons for public benefit. Clause 38(6)(c) exempts works authorised under such schemes from national authority consent unless consent is required by the scheme itself. Since drafting we have discovered that existing schemes are not consistent in the way that they treat particular types of work such as erecting buildings, so the amendment makes the position on consent consistent across such cases. Amendment No. 13 is a technical amendment to put it beyond any doubt that, as for consents under the current works control regime, clause 38 consent is free-standing and does not affect other rights or constraints that may have a bearing on the lawfulness of the works proposed.

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 57, in clause 38, page 22, line 16, at end insert—

‘( ) works necessary to comply with management agreements between a statutory commons association and a public body.'.

Michael Weir (Scottish National Party, Angus)

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

No. 58, in clause 38, page 22, line 16, at end insert—

‘( ) works which have been agreed by a statutory commons association as necessary for the welfare of animals.'.

No. 59, in clause 38, page 22, line 16, at end insert—

‘( ) works which have been agreed by a statutory commons association as necessary to prevent the unlawful access of vehicles onto the common.'.

No. 60, in clause 43, page 25, line 4, at end insert—

‘(e) the welfare of animals.'.

James Paice (Conservative, South East Cambridgeshire)

This group follows on from the group that we were discussing a few moments ago. The intention is the same. It is not to undermine the role of the national authority but to minimise unnecessary intervention and bureaucracy in order to speed up the process of management of the commons. I have no doubt that the Minister will again refer us to clause 43; as it has no amendments, we may have a long debate on that clause when we reach it. I am seeking to amend subsection (6), as opposed to subsections (2) and (3) in the previous group. I confess to being at somewhat of a loss as to the difference between this and clause 43. Subsection (6) states:

“The prohibition in subsection (1) does not apply to”

paragraphs (a), (b), (c) and (d). Clause 43 also lists circumstances where clause 38 is not to apply. I am not too sure what the distinction is: I might just as well have tabled these amendments to clause 43.

The four amendments address key areas. Amendment No. 57 is straightforward. It may well happen—indeed, it is probably desirable—that a statutory commons association makes an agreement with a public body, probably Natural England or the Countryside Council for Wales. The purpose of the amendment is to facilitate the carrying out of works under such an agreement. An agreement with a public body should be sufficient to give the works the go-ahead. Amendment No. 58 applies where a statutory commons association believes that an action is necessary for the welfare of animals. Amendment No. 60 seeks to insert a similar phrase in clause 43.

The House is always concerned about the welfare of animals. Even with the speeded-up process and the codes of practice, sometimes actions necessary to assist the welfare of animals need to be carried out very quickly. Whatever system is in place, it will not always be quick enough. Therefore if it is felt that a measure is needed to protect animals—predominantly grazing animals, but it may be wild animals—a decision of the statutory commons association should be sufficient.

Amendment No. 59 comes back to the point raised by the hon. Member for Meirionnydd Nant Conwy a few moments ago and which I mentioned in Second Reading. It is the issue of unlawful access of vehicles on to the common. I heard what the Minister said about disabled access. Obviously none of us wants to effectively debar the disabled from accessing commons in their appropriate vehicles. However, the Minister knows full well that there are a number of commons with serious problems of incursion. That might be illegal and the Law of Property Act 1925 might say that a person should not go more than 10 m off a highway, but we know that it happens. There are times when the only way to stop that happening is to erect what some people call “tank traps” and “ditches” and all sorts of other impediments to vehicular access to a common. That has nothing to do with the right to roam or people walking and enjoying their rights of common, but relates to people taking vehicles on to the common, which is often to the detriment of other users.

I hope that the Minister will go away and think in more detail about the matter because there needs to be provision for such measures when local people agree that it is necessary in order to protect the rights of the vast majority—the legal users of the common, whether they be holders of commons rights, walkers or anybody else who wishes to access the common lawfully.

I hope that the Minister will understand that the amendments are designed to be constructive and helpful, to reduce bureaucracy and to assist works that protect our commons, rather than those that hinder them. I hope therefore that he will look favourably upon, if not the fine detail, at least the principles behind them, particularly on the issue of unlawful vehicular access. I hope that he will agree to go away and reflect further, because clearly I am not the sole proponent of that view.

Jim Knight (Labour, South Dorset)

I have always reflected carefully on everything that the hon. Member for South-East Cambridgeshire says, and I will continue to do so.

The hon. Gentleman asked about the distinction between the exemptions under clause 38 and those under clause 43. Under clause 38, those exemptions are automatic—the regime will not apply, per se—whereas clause 43 provides the national authority with the power to exempt particular categories of works by order subject to the negative resolution procedure. I hope that that helps to set out the difference.

Clause 38(6) gives a global exemption from consent only to works carried out under statutory powers. Those must relate to either the common in question or common land in general. For example, such powers might be exercised by a board of conservators, a local authority or a statutory undertaker. Works carried out or organised by a commons association using powers conferred under the Bill are excluded specifically from the exemption because commons associations are not required or even intended to be fully representative bodies, as was discussed on Tuesday during our deliberations on the amendments tabled by my hon. Friend the Member for Stroud. Often they represent only those with a legal interest in the land because of the limited nature of the functions that can be conferred on them under part 2 of the Bill.

It would be inappropriate for the Bill to give commons associations carte blanche to undertake particular types of works on a common because they are not fully representative. For example, management agreements might envisage extensive lengths of fencing to separate areas of different grazing intensity, but it would not be right for the Bill to rubber stamp such works by associations if they would impede access to a common, or to allow them to make agreements that rely on such works. Those proposed works should receive the same scrutiny as they would if they were proposed by the owner of the land.

On animal welfare and vehicular access, the examples given in this debate and elsewhere of why certain works might be needed for animal welfare reasons reinforce, to my mind, the need for such works to receive careful scrutiny. For example, using fencing to channel animals away from recreational hot spots, or to keep them from straying on to roads could have a significant and long-lasting effect on the open and unenclosed nature of commons about which I talked. Proposed work on shelters or feed stations for animals is of a scale and significance that should receive proper scrutiny through the consent rÃ(c)gime and I am resistant to doing anything that threatens animal welfare.

I responded earlier to the hon. Member for Meirionnydd Nant Conwy on vehicle access and there is not much to add. I questioned my officials when I had read the briefing from the Country Land and Business Association which mentions tank traps. I am satisfied that it will be possible to use clause 43 as and when such devices come forward so that they do not prejudice disabled horse riders and others who want legitimate access. I hope that the Committee will be equally satisfied.

We shall resist amendment No. 60 for similar reasons. We intend to consult widely on whether and how we should use the power in clause 43 to exempt particular types of work from the regime, but we are clear, as I said earlier, that we will use it only in relation to minor or temporary work. The sort of work that the hon. Gentleman has in mind is significant and potentially controversial in its effect on a common and its use by others. As I said, such work needs proper scrutiny and I hope that the hon. Gentleman will withdraw his amendment.

James Paice (Conservative, South East Cambridgeshire)

I will not prolong the Committee’s consideration. I have made my points and the Minister understands that there is concern on the Opposition Benches about the general impact of clause 38 on sensible measures that people may feel are necessary and about the need to reduce what appears to be a massive sledgehammer to crack a nut: having to go to the Secretary of State for approval for virtually everything. That is what we are trying to remove.

I am sure that the Minister will have caused further debate on clause 43. We may return to some of the issues then and, I suspect, on Report. In the meantime, I beg to ask leave to withdraw the amendment.

Clause39

Jim Knight (Labour, South Dorset)

I beg to move amendment No. 14, in clause 39, page23, line 12, leave out

‘the personto whom the consent isgiven'

andinsert

‘any person carrying out orproposing to carry out works in accordance with theconsent'

Michael Weir (Scottish National Party, Angus)

With this it will be convenient to discussGovernment amendment No.15

Jim Knight (Labour, South Dorset)

I shall be brief. Amendment No. 15 allowsregulations to set a time limit for making applications to vary orrevoke modifications or conditions. Subsection (5) is not intended toprovide a lasting opportunity for challenge to the nationalauthority’s determination. It is important to achieve clarity assoon as possible about the terms on which consent is given and ifcircumstances change later, a fresh application for consent may bemade.

Clause40

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 66, in clause 40, page23, line 28, at endinsert

‘including guidelines ontimescale fordecision.'.

Michael Weir (Scottish National Party, Angus)

With this it will be convenient to discussamendment No. 106, in clause 40, page 23, line 36, at endadd—

‘(k) for theappropriate national authority on receiving an application to bedetermined under sections 38(1) and 39(5) to inform the local authoritythat acts as the local planning authority for the area in which theworks are proposed;

(l) for anyplanning authority receiving an application for development on commonland or a town or village green to bring such application to theattention of the appropriate national authority, community or towncouncil and any of statutory or voluntary commonsassociation.'.

James Paice (Conservative, South East Cambridgeshire)

This amendment follows on from our earlier debateand the intervention by my hon. Friend the Member for Ludlow (Mr.Dunne) about his experience of a time-consuming process in northShropshire.

Theamendment was suggested by the Woodland Trust as a result of seriousproblems that it has had waiting for the Secretary of State’sconsent to fencing when it has tried to reintroduce grazing for goodconservation management on parts of commons. It fits entirely with our earlier discussion, and this time I am trying tointroduce into the procedure for consent in clause 40 a requirementthat the regulations include guidelines on the time scale for makingdecisions. Speeding up the process would be to the advantage ofeffective commons management, which is largely what the Bill isabout.

I have no doubtthat although the Minister will not want to accept the amendment as itis, he accepts the principle behind it, which is that speed is of theessence. If he does not want to include such a requirement in theregulations, he must put some predication somewhere that matters willbe dealt with as swiftly as possible so that decisions can be made andactions followtherefrom.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I rise tospeak to amendment No. 106. The protection of common land and town andvillage greens is an important matter for all the reasons that havebeen discussed. For various reasons, it is sometimes difficult toprotect such land from inappropriate development. For example, theowner may be absent or uninterested in the land, or the land may be soremote that development can occur on it without the appropriateauthorities being aware of it from the beginning. It is for that reasonthat the Government have introduced this part of the Bill, which dealswith the protection of common land and town and villagegreens.

The intentionof the amendment is to make such double protection even more effectiveand efficient. Almost all of clause 40 deals with things that must beincluded in regulations, and we would like to add that the nationalauthority should alert the local planning authority of potentialdevelopments so that it can take action to ensure that a planningapplication is solicited if one is needed for the work, or at leastkeep an eye on the land on which the development isproposed.

The secondpart of the amendment, which would require the planning authority togive notice, would make the most of the double protection that theGovernment want in the Bill. I hope that the Minister sees fit toaccept the amendment so that the requirement can be included inregulations and make the most of the intendedsafeguards.

I drawattention to a golf course that appeared on Cilsanws common, which isin a constituency that neighbours mine. It is causing considerableproblems to the commoners and the people who live around the common.Somehow, it appeared without planning permission or permission undersection 194 of the Law of Property Act. My amendment may not befoolproof, but it would contribute in some way to safeguarding againstcompletely illegaldevelopments.

As theMinister knows, it is always more difficult for a borough, nationalauthority or local planning authority to deal with a development afterit has been completed, as they must go through the process ofenforcement, appeals and goodness knows what. It is better to deal withit before it happens, and my amendment would in some way contribute toa more effective process andsystem.

Philip Dunne (Conservative, Ludlow)

I rise briefly to support my hon. Friend the Memberfor South-East Cambridgeshire in relation to amendment No. 66. I am grateful to him for referring to my previousintervention in support of it.

My point to the Minister isthat most amendments to common land management procedures are connectedto the growing cycle. The improvement of biodiversity and the reseedingof ground where grass needs to be replaced happen over not weeks ormonths, but an entire growing season. If we miss the growing season oneyear, it is one year later before we can start to take the measuresneeded. Putting pressure on the statutory authority to accelerateapplications is vital; otherwise those problems will persist for yearafter year.

Jim Knight (Labour, South Dorset)

We have no problem with the spirit of amendmentNo. 66. We agree about the desirability of improving timing andstreamlining, but clause 40 contains the powers necessary to prescribethe procedures and timing that must be adhered to when works on commonsare proposed. Equally, we can issue guidelines on timings if weconclude that that is more appropriate. We will consider the issues indetail and consult publicly about how we intend to operate the system.I hope that that provides the hon. Member for South-East Cambridgeshirewith the reassurance that he seeks.

I am afraid that we will alsoresist the amendment tabled by the hon. Members for Brecon andRadnorshire (Mr. Williams) and for North Cornwall. The first aspect ofthe amendment is unnecessary, because regulations under clause 40(2)(f)on the steps to be taken by the national authority on receipt of anapplication would require it to tell the planning authority ifappropriate. We intend to consult fully on the content of thoseregulations, and that will provide us with the opportunity to put thatcase.

The secondaspect of the amendment would require the planners to tell theauthority and others about planning applications for commons andgreens, but that would not be an appropriate legal requirement. Localplanning authorities must decide, with due regard to planninglegislation and guidance, what action to take on receipt of planningapplications and how to determine them.

We intend to issue to localauthorities guidance on the implementation of this legislation. Iexpect the guidance to draw planning authority attention to the issuesthat arise when development is proposed on a common—perhaps toavoid the bizarre example from the hon. Member for Brecon andRadnorshire of a golf course on a common for which there was nopermission. Having said that, I do not want to comment on an individualcase.

I expect theguidance to draw planning authority attention to those issues, becauseof the special protections that apply to commons. Commoners' rights overmany commons and some greens must not be prejudiced by any development.The sheep must be protected from the golf ball. I hope that, on thatbasis, the hon. Gentleman will not press hisamendment.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I am not satisfied with the Minister’sresponse. I am sorry to have caused him physical inconvenience at thisstage of the debate, but it is important to put in place as muchprotection as we can for these precious national treasures. I am therefore tempted to pressfor a vote, and I intend to do so.

James Paice (Conservative, South East Cambridgeshire)

I moved the lead amendment, and I did not expectthe Minister to accept it—surprise, surprise. However, Iunderstand what he said, which was that, under clause 40, he will beable to introduce in the regulations some points about timings. That isimportant.

My hon.Friend the Member for Ludlow yet again inserted an important note ofcommon sense—this time about growing seasons and timing. It isimportant to receive a decision in time to act at the right time ofyear. Nevertheless, I look forward to holding the Minister to accountto ensure that he introduces such regulations. In expectation of that,I beg to ask leave to withdraw the amendment.

Clause41

David Drew (Labour, Stroud)

I beg to move amendment No. 78, in clause 41, page23, line 40, at endinsert—

‘(1A) It is the dutyof the commons registration authority to prevent, as far as possible,the unlawful encroachment on any common land for which it is theregistration authority'.

I could go on at considerablelength about the amendment but, although it is important, I shall not.From what I have read, those in another place were beginning to run outof steam towards the end of the Bill. They considered how localauthorities that presumably will be the registration authorities willhave the means by which they can pursue enforcement, as well as whowould be entitled to take such action. As always, there was worry abouta vexatious litigant and who would bear the cost of suchproceedings.

The mainpurpose of the amendment is to put a duty on local authorities toremove illegal works. It is welcome that the Government areintroducing, under section 194 of the Law of Property Act 1925, thesame procedure in respect of all commons to ensure consistency, but itseems anomalous that the public will have the power to take actionagainst unlawful works, the construction or semi-construction of abuilding, although there will be no duty on local authorities to takeenforcementaction.

The proposalis a probing amendment to ascertain the meat of the Bill and toconsider whether actions can taken by various parties that may be theowners of the commons or, indeed, the association or committee. Whataction will the Government take to give the registration authoritiesthe responsibility to do something about such encroachments? The issueis important. Those of us who have commons in ourconstituencies—it seems to be virtually everyone in theCommittee—will expect to hear what the Government are doing andwhether they would consider puttinga duty on the registrationauthorities to take enforcementaction.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The amendment, which would place a duty on local authorities is reasonable, and would improve the Bill. The question is whether they have the necessary money and expertise to take enforcement action. I understand the principle, and it is a good idea.

I should like to ask the Minister one or two questions, given that we did not succeed in the attempt to bring proportionality into clause 38 by inserting the word “materially” to avoid de minimis cases. The enforcement duty for infringements will lie with county councils, local authorities and parish councils. That will open it up to every person on the street. It is to be hoped that people will not use the law for the wrong reasons or pursue minor infringements such as the use of temporary pens for collecting sheep, butts for shooting and so on. That is a danger.

We have had this debate twice before, and I do not want to delay matters. The Minister says that the county court will not make an order, but getting that far is a waste of the court’s time and everybody’s money. It is undesirable that the Bill should leave an avenue open for people to take what might well be vexatious action for whatever reason—they might have a personal grudge; I do not know. I am concerned about the provision, because it could be misused.

My second question for the Minister is whether, having given individuals the right to litigate by taking such matters to court, the clause would enable them to take enforcement action against perceived existing breaches as well as future ones. I can anticipate his response to my first question, because we have been over that ground, but I should like him to respond to my second question about whether the clause would cover existing breaches.

Jim Knight (Labour, South Dorset)

I will think about that last point while I deal specifically with amendment No. 78, which would place a duty on commons registration authorities to resist encroachment on common land. I am grateful to my hon. Friend the Member for Stroud for tabling it.

The Bill goes some way toward improving controls on works on common land. It will clarify the application of the controls, modernise the consent regime and, as we heard, enable any person to enforce against unlawful works. It will no longer be possible to ignore the controls in the hope that they will not be enforced.

As I have said, I want Natural England and the Countryside Council for Wales to become the Government’s champions for the management and well-being of common land. We see a role for them in encouraging communities to take a more proactive attitude to protecting their common land.

Registration authorities, in common with other councils, will have power to enforce against encroachments, but my hon. Friend will appreciate our position on the matter. A local authority’s priorities are for the authority, and not central Government, to decide. It is appropriate to give the power but not the duty.

The Bill is not just a legislative instrument. It will raise the profile of common land. We will be working closely with local government in the next few years to implement the legislation, assuming that it becomes an Act. That will involve issuing circulars explaining authorities’ powers as well as their duties under the Act and encouraging their greater involvement in the management of common land.

I counsel my hon. Friend against seeing new duties necessarily as a solution to a problem. I am sure that he shares my desire to see greater access to the countryside, but duties alone are not always fulfilled, as we have seen with the management of the public rights of way network by certain local highway authorities in certain parts of the country. It is only as a result of a combination of new duties—such as rights of way improvement plans, together with guidance and a great deal of hard work by, in the case of England, the Natural England partners and the Department for Environment, Food and Rural Affairs in raising the profile of rights of way in the past few years—that we are now seeing results in making the network better available for use. I want to see a similar effort made to raise the status of common land.

David Drew (Labour, Stroud)

I understand what my hon. Friend is saying. Obviously, I shall not be pressing the amendment to a Division, but I am interested in the difference between someone who blocks a common and someone who blocks a road. A local authority has a duty to keep the highway open as, incidentally, do members of the public, who operate under a power if they see someone blocking the highway for whatever reason. The clause is really about consistency and making sure that local authorities do what they should do. As we know from previous debates, there are cases where, because of the parking of a vehicle or some other reason, a local authority can choose to do nothing. That is just not acceptable.

Jim Knight (Labour, South Dorset)

There are all sorts of rights of way and local authorities make their judgments about the blockages on them. If it is a busy highway, they are more likely to take action than if it were a quiet footpath. They exercise their duties with discretion, and that is my point. Therefore, I can not accept the amendment, but I hope that my hon. Friend will accept that the Bill takes us into a new era for common land. I am confident that, in future, the profile of common land will be much higher and the controls far less likely to be breached with impunity. We all have a role in encouraging local authorities to use their powers in the public interest and I know that all members of the Committee are keen to protect and enhance our commons.

With respect to the comments made by the hon. Member for Meirionnydd Nant Conwy about retrospective enforcement against existing unlawful works, there was significant debate in the other place where views on both sides were expressed. We amended the Bill on Third Reading in the other place to prevent any person from taking enforcement action against unlawful works before its introduction. Local authorities and the legal interest in the land remain able to enforce against such works within the normal time limits. On reflection, we do not feel that it is fair to extend retrospectively the scope for enforcement in that situation. I see the hon. Gentleman nodding and therefore hope that my explanation is sufficient. I ask him not to press the amendment.

David Drew (Labour, Stroud)

I am concerned that, under clause 42, power will be granted to local registration authorities to amend existing schemes of work. Although we have to be careful that we are not allowing a diminution of the responsibility of local authorities, I beg to ask leave to withdraw the amendment.

Jim Knight (Labour, South Dorset)

I beg to move amendment No. 16, in clause 41, page 23, line 41, leave out from ‘order' to end of line 42.

Michael Weir (Scottish National Party, Angus)

With this it will be convenient to discuss the following: Government amendments Nos. 17 and 18.

Amendment No. 79, in clause 41, page 24, line 4, at end add—

‘(2A) If the person carrying out the works fails to comply with an order under this section, an eligible person may carry out any outstanding requirements of the order and recover from the person in default the costs reasonably incurred by the eligible person in doing so.

(2B) If an eligible person other than a local authority considers that outstanding requirements under subsection (2A) are beyond the capability or resources of that person, they may require an appropriate local authority to carry out those requirements.'.

Amendment No. 80, in clause 41, page 24, line 4, at end add—

(a) If a person fails without reasonable excuse to comply with an order under subsection (2) above, he is guilty of an offence and liable to a fine not exceeding level 5 on the standard scale; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding one-twentieth of that level for each day on which the offence is so continued.

(b) Where, after a person is convicted of an offence under paragraph (a) above, the local authority for the common concerned exercise any power to remove the cause of the obstruction, they may recover from that person the amount of any expenses reasonably incurred by them in, or in connection with, doing so.'.

Jim Knight (Labour, South Dorset)

The Government amendments are technical. I hope that the Committee will accept them.

Clause 42

Jim Knight (Labour, South Dorset)

I beg to move amendment No. 19, in clause 42, page 24, line 9, leave out

‘at the commencement of this section'

Michael Weir (Scottish National Party, Angus)

With this it will be convenient to discuss the following: Government amendments Nos. 20 and 21.

Amendment No. 81, in clause 42, page 24, line 13, leave out subsection (3).

Government amendments Nos. 22 and 23.

Jim Knight (Labour, South Dorset)

Again, these are technical amendments, which I do not propose to comment on. I shall do the equivalent of moving them formally, while allowing my hon. Friend the Member for Stroud to get up and speak—should he really need to—in respect of his amendment.

David Drew (Labour, Stroud)

I shall be quicker on my feet in future. They used to say that when I played football.

Amendment No. 81 is intended to probe the Government by examining the powers to override existing schemes of management, which links directly with what I said about clause 41. I want to probe what the Government intend as the normal way of doing things. The amendment would ensure that the appropriate national authority cannot override an absolute prohibition of works contained in an existing scheme of management.

Schemes of management are important because they are the existing way in which things have been done and it would be wrong if the Bill superseded schemes that are already working well. Where they are not working well, I hope that Bill will give them a kick up the backside and make them improve.

It is somewhat sad that the clause appears to weaken the way in which existing schemes of management operate and I am looking for the Minister to assure me that that is not the intention. Where long-standing schemes—I could list them, but I shall not—are extant and deserve recognition, they do not need alteration. I hope that he will assure me that the Government’s intention is not to disrupt some of these schemes that go back a long way in history and work very successfully.

Jim Knight (Labour, South Dorset)

Clause 42, as a whole, applies to land covered by an existing management scheme under either the Metropolitan Commons Act 1866 or the Commons Act 1899. Where the terms of such a scheme prohibit works without any scope for any person to consent to them, the clause allows such works if they receive consent under clause 38. Where such a scheme provides that works are permissible with the consent of the national authority, consent has to be given under the criteria set out in clause 38. These measures are designed to increase flexibility while improving consistency.

I shall resist my hon. Friend’s amendment because it would be a retrograde step. The whole point of subsection (3) is to avoid an absolute ban under an existing scheme on works on a common that would be beneficial, for example, by helping visitors to enjoy the common. This is not a matter of covering scheme commons with major new developments or removing people’s access rights. Rather, it is a matter of having the ability to do something if it is appropriate for the land, taking into the account all the checks and balances that the consenting scheme system involves and all the views expressed to the national authority on the subject. We do not want to shut down that new flexibility and I hope that my hon. Friend will not seek to press his amendment to a Division.

Clause 43

James Paice (Conservative, South East Cambridgeshire)

I fear that the Minister has brought this debate on himself by making frequent references to this clause.

Jim Knight (Labour, South Dorset)

It is a great clause.

James Paice (Conservative, South East Cambridgeshire)

It may be a great clause, but I want to invite the Minister to explain, briefly, why that is. Without rehashing the ground that we have already covered, I should like to make two points. The first is that the Minister said earlier that the clause is specifically intended for minor and temporary works; that is its purpose. It does not say so anywhere, so I invite him to clarify that point. If that is the intention of the clause, should it not say so?

The second point is that subsection (1), which defines the orders, makes a lot of specific statements about

“the carrying out by a specified person of specified works on specified land; or...by a specified person, or a person of a specified description, of works of a specified description,”

and so on. The orders are going to be so specific that one wonders whether they will be of any value for exemptions. Officials of the national authority will have to do so much work looking at such a proposal to decide whether to exempt it that they might as well approve it. I had understood from the Minister’s interventions under clause 38 about this clause that it would deal with the problems that Opposition Members have mentioned, rather than unnecessarily requiring the national authority to deal with piffling—the Minister himself used the word trivial—issues.

As drafted, the clause does not achieve the objective that the Minister has proclaimed for it. I accept and support his remarks, but they do not reflect what clause 43 says. I suggest that, by the time officials have done all the work described in the clause in order to decide whether to exempt any work, the time, bureaucracy and cost—not just to the taxpayer but to the applicant—will have been so great that they might as well have gone through the approval procedure. That was the straightforward point that I wanted to make. I look forward to the Minister’s trying to clarify it for us.

Paddy Tipping (Labour, Sherwood)

The hon. Gentleman is right to say that we need to clarify the point. This morning, under clause 38, the Minister was clear about the use of the words “temporary” and “minor”. I am keen to get that on the record. The problem is that we could have different views about the meaning of temporary and minor. I take temporary to mean weeks and months, rather than years. I have seen applications from bodies that are called temporary, but stretch into years. It would be useful to have an idea about what is considered temporary. We also need to discuss what constitutes minor.

This morning, the right hon. Member for Penrith and The Border (David Maclean) gave a number of examples of things that were clearly temporary, and the Minister told us that electric fencing would not be viewed as temporary. He is right. In many cases, clause 38 should be used. However, in response to the hon. Member for Meirionnydd Nant Conwy, he said that tank traps could be regarded as temporary. I am not sure that that is correct. We are talking about matters of judgment. I agree with the hon. Member for South-East Cambridgeshire that the measure will create a lot of work, a lot of difficulty and a lot of angst. It is in our interests to be as clear as we can about what the clause stands for and what we mean by temporary and minor.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

On a point of information and to try and enlighten the Committee, I should say that the hon. Member for Sherwood (Paddy Tipping) is quite right: we should tease out a bit more information on this issue. On the main road between Dolgellau and Bala, in my constituency we had temporary traffic lights for 27 years.

David Maclean (Conservative, Penrith and The Border)

I want to return to the point about minor works and fencing. It is not fanciful; almost every day of the week in the Cumbrian fells and around the country, gaps appear in stone walls and six ft of wall falls down. Every farmer then automatically sticks a little bit of electric fencing or sheep netting on it. Under clause 38, they would have to apply for permission for that temporary fencing.

The Minister says, “No, don’t worry; clause 43 can exempt that sort of thing”, but will he confirm that clause 43 is general enough to exempt all farmers in that hypothetical situation, or would the farmer who has found a gap in his wall have to get a specific order to be exempted from the provisions of clause 38? I shall assume that none of us wants a farmer who puts up five yards of fencing for six weeks to have to go to the Secretary of State for an exemption.

Jim Knight (Labour, South Dorset)

Generally, if a wall is bounding the common—on the perimeter, as is often the case—it is not part of the common, but the surrounding farm land. Therefore, the farmer can do what he likes with it. Obviously it is a different ball game if it is inside the common.

David Maclean (Conservative, Penrith and The Border)

There will be a mixture and many walls will be inside the common. Cumbria is awash with walls; it is still a common, but there are walls across the parish boundary and temporary walls are used to hold sheep, particularly at lambing time.

On walls inside the common that are caught by the provision, will the Minister reassure the Committee that clause 43 will allow him to make a general order? He might be persuaded before Report that there is a genuine problem relating to the temporary stopping up of a hole in a stone wall with a fence. He might think, “Yeah, that’s okay, that is smaller enough, de minimis, minor and is not going to drive a coach and horses through the law; I am happy to allow that”. Under clause 43, will he be able to make general regulations that will apply to every farmer or commoner in the country?

Jim Knight (Labour, South Dorset)

The right hon. Gentleman is talking about stopping up walls, but maintenance to existing works does not need consent.

David Maclean (Conservative, Penrith and The Border)

We are narrowing it down, but what happens when all the stones have fallen down and there is a gap in the wall, which the farmer plugs with a temporary fence while he spends the next few weeks sticking the stones back up and rebuilding the wall with the intention of doing a bit a dry stone walling or dry stane dyking? Is that maintenance? It is the erection of a fence, not maintenance.

Jim Knight (Labour, South Dorset)

My interpretation is that that would be maintenance because the farmer would not be erecting anything new or substantial while he maintains the wall. If I am wrong, I shall write to the right hon. Gentleman, but I am pretty sure that that would be the case.

David Maclean (Conservative, Penrith and The Border)

I am grateful for that; we are getting some elucidation, but still dodging the point. The regulations that can be made under clause 43 are specific to individuals and commoners who have to come along and ask for an exemption. If the Minister finds another category of minor works that he thinks is perfectly okay to exempt under clause 38, such as fencing, it does not seem that clause 43 would provide the power to make that general exemption apply to everyone of a particular category. It seems that, under clause 43, he can make an exemption only once someone applies and goes through all the procedure to get that exemption and become a specified person with a specified works in a specified area. Will he be able to make general exemption powers apply to everyone without their having to apply?

Philip Dunne (Conservative, Ludlow)

I briefly endorse the comments made by my hon. Friend and by the hon. Member for Sherwood. I would like also to highlight two particular problems.

It seems unnecessary to burden commons associations with the cost of providing the input to enable an order on perhaps minor issues to be written in such specific language. The bureaucratic processing of all those orders would also increase costs in the Minister’s Department and should not be treated lightly, not least if he hopes to meet his Gershon efficiency targets.

Jim Knight (Labour, South Dorset)

I am grateful for this debate because it helps to clarify matters. I was asked by the hon. Member for South-East Cambridgeshire and my hon. Friend the Member for Sherwood to clarify that we regard the provision as being for minor and temporary works. We do regard it as such, and I shall look at whether it is appropriate to put that in the clause title. However, for now, I can give the clarification that the Committee seeks.

There have been other questions about the clause being too specific. There is a danger that because the word “specified” is repeated so many times in subsection (1), one becomes blinded to some of the other words. Subsection (1)(a) is very specific; it uses the word “specified” three times. However, it ends with the word “or” before moving on to subsection (1)(b), which starts with “a specified person”, but then becomes more general by referring to

“or a person of a specified description, of works of a specified description on—

(i) any land; or

(ii) land of a specified description.”

Clearly, that allows us to issue exemptions to categories of works, rather than applying, as does paragraph (a), to specified persons doing specified works on specified land. I hope that that helps the Committee.

My hon. Friend the Member for Sherwood talked about tank traps. As I said to the hon. Member for Meirionnydd Nant Conwy, the Country Land and Business Association made an interesting point about tank traps. However, I said also that if we could find a suitable device, we might think about it. However, I am not sure that a tank trap is that device. I hope that that is helpful.

Clause 45

David Drew (Labour, Stroud)

I beg to move amendment No. 82, in clause 45, page 25, line 39, leave out ‘may'.

Michael Weir (Scottish National Party, Angus)

With this it will be convenient to discuss the following amendments: No. 83, in clause 45, page 25, line 40, after ‘(a)', insert ‘shall'.

No. 84, in clause 45, page 26, line 1, after ‘(b)', insert ‘may'.

No. 85, in clause 45, page 26, line 3, at end insert

‘; and

(c) may apply (under section 97 of and Schedule 6 to the Land Registration Act 2002 (c. 9)) to the registrar to be registered as the proprietor of a registered estate in the land as if the authority has been in adverse possession of the estate for a period of not less than ten years ending on the date of application.

(2A) The land registered in accordance with subsection (2)(c) shall vest in the local authority under this section together with section 10 of the Open Spaces Act 1906 (c. 25) (maintenance of open spaces and burial grounds by local authority) or, if that is the case, the Commons Act 1899 (c. 30).'.

No. 86, in clause 45, page 26, line 7, at end insert

‘; and

(d) a national park authority or area of outstanding natural beauty conservation board'.

No. 87, in clause 45, page 26, line 7, at end insert—

‘(4) If the land is regulated in accordance with a scheme under the Commons Act 1899 (c. 30), a parish or community council may only apply for registration in accordance with subsection (2)(c) if the powers of management of the scheme have been delegated to that council.'.

No. 104, in clause 45, page 26, line 7, at end add—

‘(4) Where subsection (1) applies and a commons association established under Part 2 does not exist in relation to the land, a local authority may assume and exercise any of the rights of management of the land which would otherwise be held by the owner, until such time as a commons association exists or the owner is identified.'.

David Drew (Labour, Stroud)

Six of these amendments are in my name, but amendment No. 104 is in the name of the hon. Member for Brecon and Radnorshire. I shall let him have all the fun of mentioning every common that might need to be included because its ownership is not clear. I shall stick to amendments Nos. 82 to 84, which are technical, and then say a little about amendments Nos. 85 to 87.

Amendments Nos. 82 to 84 try to clarify exactly what we would expect of a local authority when there is no known owner and a clear need for works to be done or stopped. This series of amendments is necessary to identify sites of special scientific interest that are in an unfavourable condition and it would force local authorities to take responsibility for that common land.

Although amendment Nos. 82 and 83 simply change “may” to “shall” and amendment No. 84 includes “may” elsewhere, they seek clarification from the Government. There seems to be a vacuum in responsibility for the protection of common land with no clear ownership. After all, it is in the public interest for such land to be protected. Again, this is a matter for which local authorities should be duty bound. I understand what my hon. Friend said earlier about the relationship between duties and powers, and I intend to push that issue. However, unlawful interference is not uncommon, and it is too easy for local authorities to say that they do not have any responsibility. They certainly do not have the means.

On amendments Nos. 85 to 87, the Government suggested that section 9 of the Open Spaces Act 1906 can be used to acquire unclaimed land. The difficulty is that section 9 allows purchase only by agreement, and that is not possible if the owner is unknown. Other statutes provide compulsory powers. For instance, there is section 89 of the National Parks and Access to the Countryside Act 1949, and schedule 2 to the Compulsory Purchase Act 1965, which includes an untraceable owner procedure that requires obtaining a valuation, paying it into court and then obtaining a vesting order.

It is essential that we find a mechanism for local authorities to deal with the problem of land that has no clear ownership. Section 8 of the Commons Registration Act 1965 allows for such a mechanism with regard to village greens. The mechanism is not nearly as clear for common land. I hope that my hon. Friend will be able to clear that up. I also support the hon. Member for North Cornwall, whom I am sure will explain why we tabled amendment No. 104.

Dan Rogerson (Liberal Democrat, North Cornwall)

I wish to speak to amendment No. 104, which is tabled in my name and those of my hon. Friends and the hon. Member for Stroud. In the same spirit as the hon. Gentleman’s amendments, this amendment is about the local authority taking action where land is not in the state that we would like to see. In many areas, the problem is that unclaimed land is used for purposes that are a nuisance to the local community. The landis not brought up to the standard that we wouldlike for environmental purposes, for maintaining archaeological features, or for ensuring that it is a useful amenity for the community and that it is used as it was originally intended. Our amendment seeks to ensure that a local authority would exercise powers in the absence of a commons association and take action, so that those issues could be resolved to the benefit of the local community and those who enjoy the land.

Jim Knight (Labour, South Dorset)

The amendments tabled by my hon. Friend the Member for Stroud and the hon. Member for North Cornwall would go further than clause 45 permits and impose a duty on local authorities to take action. As my hon. Friend said, we recently discussed the issue of duties and powers, and I shall not dwell on it. Authorities should retain the discretion to act, and they should be responsive to local priorities and electors.

Moreover, it would be quite wrong to compel authorities to act in every case regardless of the circumstances. An area of public land might be of little public value, remote from any public access, and of no use to agriculture, and the threat might be trivial or ephemeral, but a duty would require the local authority to take up the cudgels just the same as if there were a rave on the village green.

I accept my hon. Friend’s admonition that given the discretion to act, local authorities too often do not act all. That point has been made to me by others, and I agree with him that that is sometimes unsatisfactory. However, we hope to do two things that I believe might help. First, we will work with local authorities and the Local Government Association to improve understanding of the legislation and the authorities’ role in implementing it. That will include the publication of guidance to authorities, and we will consult on what that guidance might say about authorities’ use of the powers under the clause.

Secondly, we are considering whether local access forums could advise authorities on taking action under clauses 41 and 45 to promote public access to common land, particularly where public access is currently restricted or excluded. I am sorry to disappoint my hon. Friend again, but I hope that my explanation of where the Government stand on amendments Nos. 82 to 84 is adequate.

Paddy Tipping (Labour, Sherwood)

In general, I support the approach of my hon. Friend the Member for Stroud, but I think that there is a strong case for using local access forums. That would be a much better way forward than the first alternative involving education and consultation. I press the Minister hard to consider local access forums as the way forward, because they would consist of local people who know local problems and can often find local solutions. He has found a neat way forward.

Jim Knight (Labour, South Dorset)

I am grateful to my hon. Friend for his support for the second option. I consider myself well pressed.

David Drew (Labour, Stroud)

Like a flower.

Jim Knight (Labour, South Dorset)

The Corby trouser press of the Committee system.

I turn to amendments Nos. 85 and 87. I would be first to acknowledge that in the common land policy statement of 2002, we committed to the vesting of unclaimed land in a suitable body for long-term management. In hindsight, however, there is a risk of confusing the questions of ownership and management. We all want to promote better management—that is what the Bill is all about—but we do not need to tackle difficult questions of ownership unnecessarily.

I accept that the 1965 Act provided for the vesting of unclaimed greens in local authorities. We think it unlikely that the same approach could be taken now. The 1965 Act created no mechanism to reverse vesting, for example, and today such an approach would be likely to have human rights implications. The fact that vestings under the 1965 Act gave rise to few problems perhaps reflects the lower value of a green to the owner than common land and, therefore, the lower likelihood of challenge from a dispossessed owner. Whatever the merits of that approach, it does not commend itself today.

In responding further to amendments 85 and 87, I shall also refer to amendment No. 104, which was spoken to by the hon. Member for North Cornwall. It would enable a local authority to assume full powers of management of unclaimed common land where no commons association exist. We agree that local authorities should be empowered to take on the management of unclaimed commons so that they can be managed by local people with community interests at heart. However, local authorities can already do this in the majority of cases, through management schemes under the Commons Act 1899. Moreover, our amendments to that Act will ensure that such schemes are fit for purpose in the 21st century.

Dan Rogerson (Liberal Democrat, North Cornwall)

I am grateful to the Minister for his reassurances, although I am cautious in my welcome. He referred to the majority of cases. There might well be cases that cannot be resolved through the powers that he described. How does he suggest those issues should be resolved?

Jim Knight (Labour, South Dorset)

I shall write to the hon. Gentleman and to the Committee to sketch out what that small number of cases might be. Then he can judge whether he wants to do anything further.

It is perhaps unlikely that local authorities would want to invest resources in managing a common that could be reclaimed at any moment by its owner, but a scheme under the 1899 Act anticipates and protects against that outcome. I hope that my hon. Friend the Member for Stroud will accept that if an authority has full powers of management, it does not need to gain ownership of the land, as the amendment proposes. Beyond the 1899 powers, it is also possible to manage unclaimed land under part 2 of the Bill.

I hope that the hon. Member for North Cornwall will also agree that powers of management cannot be bestowed like confetti, with authorities choosing when and where to exercise them. They must be properly contemplated and any commitment entered into should be by the making of a scheme.

Finally, I am glad to be able to give my hon. Friend the Member for Stroud some reassurance on amendment No. 86—I regret that I have been a little negative about most of his recent amendments. Clause 45 as drafted would have the same effect if read in context. Schedule 9 to the Environment Act 1995 sets out various powers which National Park authorities may exercise alongside local authorities, and paragraph 6(a) of schedule 5 to this Bill amends schedule 9 to the 1995 Act to include reference there to clause 45. It may seem odd not to include a specific reference in clause 45, but it is helpful if the 1995 Act maintains in one place an up-to-date list of these shared powers.

The powers of a conservation board are set out in the order establishing the board. If the local authorities promoting a new conservation board wish it to have the powers in clause 45, they can ask for that outcome. That is the way that the legislation works, and it may be of interest to the Committee to know that the boards established for the Chilterns and the Cotswolds will be able to exercise the powers inclause 45.

David Drew (Labour, Stroud)

I think I will quit while I am on a winning run, especially as the Minister mentioned the Cotswolds, which affect my constituency. I beg to ask leave to withdraw the amendment.

Clause 46

David Drew (Labour, Stroud)

I beg to move amendment No. 88, in clause 46, page 27, line 11, at end insert—

‘(7A) An order made under paragraph (b) of subsection (7) may authorise the relevant authority to carry out any requirement of an order which a person on whom a notice is served under this section has failed to comply with and to recover from that person the costs reasonably incurred by the relevant authority in doing so.'.

I will not delay the Committee for long. The amendment would simply strengthen the provision when there is no immediate sanction available for a court order for the removal of unlawful works that is not carried out. The idea is to give greater power to the relevant authority to take action to ensure that the problem is cleared up. It parallels section 137ZA of the Highways Act 1980, which allows the relevant authority to make good unlawful agricultural work.

With your tolerance, Mr. Weir, because presumably there will not be a stand part debate, I have been asked by the National Farmers Union whether we would consider the impact of non-agricultural work, especially by those who want to bring vehicles on to a piece of common land or a village green. There was an attempt in the other place to include a clause on how vehicles of various descriptions would be excluded. It would be useful to know whether the Government would consider tabling a proposal on Report for a reserve power to deal with non-agriculture abuses of common land.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I support the hon. Gentleman’s final comments. He is probably right in saying that, in a way, this is a stand part debate. I should hope that, in view of my sickening sycophancy towards you this morning, Mr. Weir, you will permit me to take two minutes of your precious time.

I fully support the point that the hon. Gentleman made about reserve power, because as the clause is currently framed it deals simply with breaches in agricultural practice. As we have mentioned many times during the debates on Tuesday and today, there is a great concern about non-agricultural transgressions, that is, the damage all round that motorcycles and 4x4 vehicles do to agricultural interests and the natural, living environment. One hopes that the Minister will consider this point carefully and respond, because there is surely a good cause for making the clause a general reserve power for the Minister, not just confining it, as is the case at present, to unauthorised agricultural activities. We have been urged to take this course of action by the National Farmers Union, the National Sheep Association and the Welsh Commoners Association, to which I am indebted for telling me about it.

Jim Knight (Labour, South Dorset)

I shall address the amendment, then deal with the other points that have been made.

The purpose of the amendment is to allow a national authority to take action to stop an unauthorised activity on a common and recover its cost, where a person fails to comply with a court order requiring them to cease that activity. We do not see a role for a third party, such as the national authority, trying to physically stop an unauthorised agricultural activity. If, for example, a court orders a person to cease depasturing livestock beyond the number of rights held, the authority would have to find, identify and remove the offending animals. That would be difficult on a large upland common. The authority would then have to engage in further proceedings in order to recover costs from the individual concerned, which might be unsuccessful if they had already ignored the original court order. A more effective approach is to use the judicial system to ensure that the individual, who knows his livestock and where they graze, personally takes action. That may take longer to achieve in some circumstances, but in the long run it will be more cost-effective. The provision carries the ultimate sanction, once a number of hurdles have been overcome, if it becomes necessary, of contempt of court proceedings.

My hon. Friend the Member for Stroud and the hon. Member for Meirionnydd Nant Conwy asked why we have addressed agricultural activities only and wanted us to think about non-agricultural activities harming a common. As they anticipated, my answer is that a range of instruments already exists for dealing with unlawful activities that might be damaging a common, such as driving a motor vehicle over it, or building on it without consent. It would not be appropriate for the national authority to have powers of enforcement against criminal activities that lie more properly with the police. We have to be clear about where those responsibilities lie.

Section 59 of the Police Reform Act 2002 allows the police to seize any mechanically propelled vehicle being driven in a careless or inconsiderate manner on or off road.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I hear what the Minister says and I know that he is trying to be helpful, but I do not recall any prosecution or action by the police along the lines that he is referring to. In fact, the police cannot wait on the uplands for a 4x4 to cross the common. It is virtually impossible to enforce the measure. In fact, it is very much like the Hunting Act 2004—no real regard is given to the way in which it is enforced. The Minister’s words give me no comfort, and I would urge him to have another think about the matter.

Jim Knight (Labour, South Dorset)

I will, as always, reflect on the proceedings of the Committee. Not only has the Home Office issued guidance to police in England and Wales on the legislation and the circumstances in which it might be used, but the power has been used very effectively in a recent clampdown in Wales, where a great many section 59 notices were issued to off-road bikers who were riding illegally over commons in Caerphilly and two bikes were confiscated. In that case, the police had teamed up with countryside rangers from the local authority and the Forestry Commission to target the problem.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am encouraged by that; obviously I must go home more often.

Jim Knight (Labour, South Dorset)

I am grateful to the hon. Gentleman for raising the issue and for pushing me as hard as he did, because it gave us the opportunity to identify that example. I hope that others will pay close attention to the proceedings of this Committee and will notice that. Perhaps hon. Members here will go out and evangelise about the excellent work that has gone on in Caerphilly—they could campaign in their own constituencies for the powers to be properly used, or use the antisocial behaviour toolkit issued by the Home Office as part of its Together campaign.

David Drew (Labour, Stroud)

I shall withdraw the amendment, although I think that the point about non-agricultural use of common land could be worth reflecting on. I beg to ask leave to withdraw the amendment.

Clause 48

Michael Weir (Scottish National Party, Angus)

With this it will be convenient to consider new clause 1—Notice of inclosure—and Government amendment No. 29.

Jim Knight (Labour, South Dorset)

Section 31 of the Commons Act 1876, with certain exceptions, requires anyone intending to inclose or approve part of a common to publish notice of that intention in a prescribed way at least three months beforehand.

Inclosure and approvement relate solely to land that is still subject to commoners’ rights—the traditional common, rather than waste land of a manor that has no common rights over it. Inclosure—with an ‘i’, not an ‘e’—is the term that describes the owner taking actions on the ground that have the effect of completely stripping the common of the commoners’ rights. Approvement is a lesser form of that, whereby the owner takes into his exclusive use part of the common that is not required to satisfy the commoners’ rights, while leaving the remainder subject to those rights.

Section 31 provided an opportunity for commoners or others to object to either type of change before it happened, so it was a very important provision in its time. However, it was, in effect, superseded by the protection offered by section 194 of the Law of Property Act 1925. Any action on the ground that would be sufficient to constitute an inclosure or approvement would certainly impede the commoners’ access over the land in question, and therefore require consent from the Secretary of State under section 194. That would explain why we know of no case in which the action required by section 31 of the 1876 Act has actually been taken. When part 3 replaces section 194, it will similarly require consent for works that impede the commoners’—or anyone else’s—access to or over the land.

We could simply leave section 31 extant, but there is a slight possibility that it could cause confusion with the procedure that we will prescribe for proposed works on a common. Our objective for part 3 is that the procedures and criteria for proposed works be as consistent and clear as possible. On balance, therefore, it is right to repeal section 31 as a provision that has become redundant.

Subsection (2) of new clause 1 is a consequential amendment to section 3 of the Metropolitan Commons Act 1878, which refers to section 31 of the 1876 Act.

Michael Weir (Scottish National Party, Angus)

We now come to clause 49 and a number of other clauses to which no amendments have been tabled. Does any member of the Committee wish to speak to any of the clauses?

Jim Knight (Labour, South Dorset)

On a point of order, Mr. Weir. Do Government new clause 1 and Government amendment No. 29 need to be moved?

Michael Weir (Scottish National Party, Angus)

I understand that they will be moved later.

Clause 60

New Clause 1

New Clause 2

Jim Knight (Labour, South Dorset)

I beg to move, That the clause be read a Second time.

Michael Weir (Scottish National Party, Angus)

With this it will be convenient to discuss Government amendment No. 30.

Jim Knight (Labour, South Dorset)

The Commons Act 1899 gives local authorities power to make schemes of management over particular commons. The proposals would update that power to make it fit for purpose in the 21st century.

New Clause 4

Paddy Tipping (Labour, Sherwood)

I beg to move, That the clause be read a Second time.

By virtue of the nature of our work, we have spent a lot of time talking about the legislative framework of the Bill. I am worried that, because we have focused on that, we have not debated in great detail the vehicle that will drive the Bill’s important aims forward. As many members of the Committee have said, Commons Bills do not come often and the whole point of this Bill is to improve our common land.

My new clause, which is supported by my hon. Friends the Members for Stroud and for Pudsey (Mr. Truswell) is straightforward. Its aim is to place a duty on Natural England to bring forward three proposals, the first of which is to promote the formation of statutory commons associations. Throughout our discussions, there has been a recognition on both sides of the Committee that that will not be easy. People will hesitate to take the step to move from a voluntary association to a statutory association. They will need help, guidance and support. On Tuesday the Minister recognised, as he has done today, the importance of Natural England in such matters. His words were preceded by the comments of Lord Bach in the other place, who was talking strongly about how Natural England needs to be involved in the creation of statutory commons associations.

The second aim of the Bill is to promote the well-being of common land, which is why we have spent two days talking about improving common land and ensuring that SSSIs come up to status.

The third aim, which we have debated widely, is a laudable objective in itself. It is to promote more town and village greens. Research shows that people care about their local communities and environments. The creation of new village and town greens will not happen by itself. I want Natural England to be involved. It is a new body with a whole range of tasks before it. It faces a difficult period in being set up. I want Natural England to know that the Bill is important, and I want it to have the power to make sure that we have statutory commons associations, common land is in good condition and that we move radically and quickly towards the formation of new town and village greens.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The argument put forward by the hon. Gentleman is perfectly reasonable. I do not come under the auspices of Natural England, but in my humble opinion, if the duty of promotion will fall on Natural England’s shoulders, it will be easier for it to promote movement if we have a new name for the commons bodies. In all sincerity, I believe that the name “commons association” is no good. It will create difficulties and it will make promotion difficult. We had a discussion on Tuesday when the Minister said that he would think about it. Whether we adopt the term commons council or another name is an important issue. It is not beyond the ken of all of us to find a word. Councils might be a proper name—I do not know—but associations in that context is not; it is a recipe for disaster and will not assist the Minister’s hopes in promoting anything.

David Drew (Labour, Stroud)

I support my hon. Friend the Member for Sherwood. He has made his argument clear. I have also made it clear that I prefer to talk about commons committees because of the debate that we had about councils, which I do not wish to reopen. I want to make a point about village and town greens. We have understandably taken a great deal of time discussing the minutiae of common land because the subject is hideously complicated. We would have spent most of our time searching through the interstices of every last detail with regard to such land. As for village greens, for which the Minister wears his other hat, the Government have a good story to tell about their work and that of the national lottery, which has found available money.

To finish on a more positive note, it is our objective, perhaps in word only if we are talking about the Government’s double devolution agenda and looking at trying to encourage neighbourhoods in urban areas, for every community, not only rural ones, to have a village or neighbourhood centre.

Tom Levitt (Labour, High Peak)

I have a lot of sympathy with the aims that my hon. Friend is trying to achieve through the new clause. On the creation of town and village greens and the role of Natural England, does he anticipate that the duty will be a general duty, or an advisory duty? Would Natural England be allowed some discretion to advise on what might be a good plan for a village or town green and what might be otherwise, or does he expect Natural England to support every application willy-nilly?

David Drew (Labour, Stroud)

I understand my hon. Friend’s situation—he is trying to forestall reopening that debate. I do not want to intrude on his private grief over what might happen if we compel Natural England to find village greens where they are not justified.

It is important to recognise that every community needs its own space to be protected. Giving that space the nomenclature of village or neighbourhood green, or whatever we want to call it—to return to the debate on who is likely to be responsible for it—would be an excellent thing for the Bill to do. I hope that, wearing his other hat, the Minister will go righteously from evangelism to promoting the measure as a good thing that comes on the back of the Bill.

The rest is rather technical. Even though it is important to underpin in statute what has been happening voluntarily for many generations, as my hon. Friend the Member for High Peak (Tom Levitt) said, it will not really set the world alight. What we are trying to do in the new clause could.

Paul Truswell (Labour, Pudsey)

I echo the comments made by my hon. Friends the Members for Sherwood and for Stroud. One of the characteristics of this Committee is a preponderance of Members representing rural or largely rural seats. I speak mainly as a townie whose introduction to the arcane and abstruse but nevertheless absolutely gripping issue of commons has been through an example in my constituency, with which I have already bored Members on Second Reading and in Committee.

It is important that some body should be responsible for promoting awareness of town greens. The residents of many areas with town and village greens do not know that they have one because it is not formally designated. During debates, we have clearly identified that communities such as Yeadon in my constituency become aware that they could get that formal designation and all the protections that it encompasses only if they go through the application process to establish a town or a village green. Few people in Yeadon are aware that that is a possibility. Indeed, those who originally raised the idea were regarded as community eccentrics, as no one knew what they were talking about until their helpful Member of Parliament collected the information, much of which was provided by the Open Spaces Society.

However, organisations such as the OSS are small and have limited resources. They do a fantastic job of providing support and information, but they cannot easily discharge that role. I add my comments to those of my hon. Friends. There must be some organisation—Natural England seems to be a good choice—to promote awareness of town greens and provide support for people who want to go through an often convoluted and demanding process.

Jim Knight (Labour, South Dorset)

I am grateful, as ever, to my hon. Friends. They will know that Natural England already has a power to carry out such activities when they benefit the natural environment. The Natural Environment and Rural Communities Act 2006 gives Natural England the overarching purpose of ensuring that the natural environment is conserved, enhanced and managed for the benefit of present and future generations. That includes promoting nature conservation and protecting biodiversity, conserving and enhancing the landscape, promoting public access and encouraging recreation in the countryside.

Natural England already has all the powers that it needs to carry out the activities set out in new clause 4 provided that they are beneficial to present and future generations. I worry that imposing a duty on it to carry out those activities would remove its element of discretion over whether such activities would be beneficial.

I appreciate that new clause 4 might be an attempt to establish what the Government see Natural England’s role to be in implementing the Bill. I told the fifth national seminar on commons in Cheltenham last year—an excellent event, which my hon. Friend the Member for Stroud attended—that I see Natural England becoming the Government’s champion for the management and well-being of common land.

We want Natural England to facilitate the establishment of commons associations where better management of a common would help to enhance biodiversity and public benefit, particularly on sites of special scientific interest, for example. However, imposing a duty to promote their formation in all cases might not be appropriate. Commons associations will be the key to improved management on some commons, but will not necessarily be appropriate for all of them.

The same applies to promoting the creation of greens. The Natural England bodies have a strong track record in local open space creation and protection, and we expect Natural England to build on that important work. Creation and protection of registered town and village greens is only one part of that activity.

Natural England is crucial to the implementation of the Bill and to the well-being of common land in general, but imposing a duty on it is unnecessary. I give an additional reassurance to my hon. Friends that I will write to Sir Martin Doughty, chair-designate of Natural England, enclosing a copy of what I have said, so that my expectations in respect of common land are clear at the outset.

Paddy Tipping (Labour, Sherwood)

I am very grateful to the Minister for saying that Natural England will be a champion of common land, that it has a record of excellence in respect of village greens, and that he will write to Sir Martin Doughty, who is an enthusiast for these matters, as is the new body. Given that Natural England is following our discussions and will have the advantage of receiving a letter from the Minister, I beg to ask leave to withdraw the motion.

New Clause 5

James Paice (Conservative, South East Cambridgeshire)

I beg to move, That the clause be read a Second time.

This is a straightforward new clause, but the Minister probably will not be able to accept it as drafted as it may be deficient. It was suggested by the Royal Society for the Protection of Birds, among others, because of concern that professional advice to the national authority is needed on how it should go about doing things.

I do not wish to destroy the harmonious mood of the Committee in the past two days, but there have been times when some Opposition members of the Committee have felt that there was insufficient practical understanding of the implications of what was being discussed. Without rehearsing those matters, it is important that the Government, or the Welsh Assembly in the case of Wales, have the necessary advice on the practicalities and implications of the proposal.

We discussed earlier matters such as minimal and trivial works, which are all relevant to the Bill, and wider management issues such as what works should, or should not, be approved. On Tuesday, the Minister touched upon the body that he is setting up to bring together the registration officers and advise and help them in their functions under the Bill. That may be linked to my proposal, the principal purpose of which is to invite the Minister to explain how he sees the national authority moving forward. I hope that he will give us some more information about setting up the organisation for land registration officers and say where he will get practical advice to help him to fulfil the significant amount of responsibility that he, or the Department and his successors, will assume under the Bill. I stress the word “practical”, because I say specifically in the amendment that the national authority should be representative of commoners as well as those with a public interest in the land. The Government should use the real interests and the wealth of experience and knowledge of people who have held commons rights and applied them and used them for grazing—or indeed used any of the other rights that we have discussed—in applying their responsibilities under the Bill.

Jim Knight (Labour, South Dorset)

The hon. Gentleman, as ever, is acting from the best intentions in wanting to ensure that the national authority acts on the best advice. However, it is not necessary to include that power in the Bill, as the national authority already has the power to establish a non-statutory advisory body, if it were felt to be appropriate.

We intend to establish a national stakeholder group to provide advice on the implementation of the Bill—but to do so on a statutory basis would introduce an unnecessary layer of bureaucracy and impose additional costs. In section 101 of the NERC Act 2006, we repealed no fewer than five committees established under various enactments, which had become redundant. We have rehearsed the arguments about this Bill being an opportunity that comes round rarely and wanting it to stand the test of time.

There will be a separate organisation from the national stakeholder group—the Association of Commons Registration Officers—which we have already started and funded for set-up costs. We also want to ensure that we use advice from other bodies that currently exist, such as the Welsh Commons Forum and the federations of commoners in Cumbria and Yorkshire. The Federation of Cumbria Commoners, with assistance from a rural enterprise scheme grant, has recently issued a series of good practice guides for commons, which we thoroughly welcome. We want to make sure that we are using such advice beyond the national stakeholder group.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister. As I said at the outset, I did not expect him to accept the amendment. Indeed, he has explained not only why he will not accept it, but why it is unnecessary. Nevertheless, it has given him the opportunity to place on the record the Government’s intention to set up such a stakeholder group.

It is getting late in the afternoon, but my right hon. Friend the Member for Penrith and The Border said that perhaps the stakeholders were useful in respect of the fencing measures that we referred to earlier—but that might be lost on some hon. Members. [Interruption.] Yes, it was much better when my hon. Friend was Chief Whip, because he was not allowed to speak. Nevertheless, I am pleased that the Minister will take up the idea of an advisory group, and I hope that it will involve a lot of people with the on-the-ground practical experience to which I referred. In that light, I beg to ask leave to withdraw the amendment.

New Clause 6

Dan Rogerson (Liberal Democrat, North Cornwall)

I beg to move, That the clause be read a Second time.

The new clause relates to an issue highlighted by a learned gentlemen who resides in the constituency of my hon. Friend the Member for North Norfolk (Norman Lamb). It would clarify the situation relating to people’s ability to access property surrounded by common land. I am not greatly familiar with the case that gave rise to the new clause, but I can see how such circumstances might be a problem in an area with no recognised roadway, where people have customarily crossed common land to access their property. The new clause would provide an opportunity to deal with that situation by having the parish council take on that right of way and ensure that it is maintained. Any issues about crossing the common land could be resolved in that way.

Helen Goodman (Labour, Bishop Auckland)

I am slightly puzzled, although I appreciate the practical problems. Surely the hon. Gentleman is not suggesting that what is at the moment a track that is used by one or two people who live beyond common land should be kept up by the local authority, involving all the costs of tarmacking and so on? Will he clarify that?

Dan Rogerson (Liberal Democrat, North Cornwall)

Certainly. I understand the hon. Lady’s point. The intention is that the matter should go to the parish council rather than the highways authority, so the track would not need to be adopted in the same way as a road. The new clause refers to

“persons gaining access to their property from the adopted public highway and by visitors to such property”,

so it would affect the track that links to the public highway, which does not need to be maintained as a highway. It is referring to a right of way, not requiring it to be tarmacked and turned into a permanent road. That is the intention of the new clause.

David Drew (Labour, Stroud)

I want to ask the Minister a question about the problem of easements, which I have mentioned on various occasions. I thought that we had clarified the matter under the NERC Act, following questions that arose from the Countryside and Rights of Way Act 2000. Can the Minister clarify that the new clause is not necessary, because what the right hon. Member for Bracknell (Mr. Mackay) achieved in that Act stands in primacy over this measure? I could be persuaded that we need to nail the matter down even more exactly, because it is a great problem in my area, and I expect that it also affects the hon. Member for North Cornwall and others.

Where there is a lack of clarity about rights of way—particularly vehicular rights of way—there should be some attempt to make it clear that people crossing common land have extant rights of way. That has become an issue in my area, where there is a dispute with the National Trust. There is an understandable demand for a body to take ownership of pieces of land, because some people have had difficulty in selling their property in the absence of clarification about their rights, particularly vehicular rights of way, and whether they should be paying the so-called owner of the land. I hope that the Minister can provide such clarification, so that I do not need to support the new clause.

Jim Knight (Labour, South Dorset)

In direct response to the point that my hon. Friend has just made, I recall what we did in the NERC Act in response to the problem raised by the right hon. Member for Bracknell in respect of his constituents and others; the problem was not restricted to Bracknell. That problem related to people who sought to access their private property via RUPPs—roads used as public paths. Some of the changes that we made under that Act would have threatened their ability to use those RUPPs with non-mechanically-propelled vehicles, because they would have reverted to what would now be restricted byways unless those people put in claims in time to convert them to byways open to all traffic. Given that that section came into effect in January 2005, as a retrospective measure, that would have been rather difficult for them. We made an arrangement for them to have private rights of way to their properties. That was not specific to common land; as I recall, it referred to access to all private property that relied on RUPPs.

It will not surprise the Committee to hear that we do not feel able to accept the new clause. It would turn what might, at best, be a private vehicle right into a public one, much along the lines mentioned by my hon. Friend the Member for Bishop Auckland (Helen Goodman). I imagine that even the home owners in question might not be particularly happy about that. The compulsory vesting of the land in question in the parish council, irrespective of who owns it now, is also a step about which we would be nervous.

We recognise that significant problems arose a few years ago, when home owners were being charged large capital sums to secure a legal right to drive over such land to their houses over commons, greens and the like. That problem arose because of the High Court judgment in the case of Hanning v. Top Deck Travel in 1993. That case seemed to indicate that home owners were unable to achieve prescriptive rights to drive to their homes in such situations under section 14(1) of the Road Traffic Act 1930—or, in the case of urban commons, after the passage of section 193 of the Law of Property Act 1925—because both statutes contain specific prohibitions on driving on such land. Quite a few landowners responded to that judgment by seeking payments from home owners for the privilege of continuing to reach their homes by car.

Faced with that wholly unacceptable situation, the Government enacted section 68 of the CROW Act 2000, to enable regulations to be made capping the amounts payable by home owners in such situations. Those regulations were made in 2002.

Happily, the House of Lords decided, in the case of Bakewell Management Ltd v. Brandwood and Others in 2004, that the original Hanning case of 1993 was wrongly decided. We would never have enacted section 68 of the CROW Act but for that case. Last year, we consulted on whether section 68 should be repealed. We took stock of the legal position, in light of the comments that we received, and we concluded that, in light of Bakewell, it is clear that section 68 serves no purpose.

We have a choice, and I am relatively relaxed about it. Indeed, hon. Members could canvass me on which way to go. We could leave section 68 extant, and possibly revoke the regulations that we made under it, as they no longer have any function. However, that might tend to perpetuate the confusion that has been all too apparent, as it might lead people to believe that section 68 had some residual purpose or utility.

Alternatively, we could use the Bill to repeal section 68. That would send the clearest possible message that the section is defunct. If the Committee favours the latter option, we are willing to table an amendment on Report to repeal section 68. I am sorry to have delayed the Committee with that explanation but it is a fairly complicated matter.

David Drew (Labour, Stroud)

I would prefer the second option, because we have only one legislative opportunity. If we want to make a clear statement about what should happen in the real world, I suggest that we do so now rather than wait for separate, presumably secondary, legislation, which could be long delayed. That is my hint to the Minister.

Jim Knight (Labour, South Dorset)

If the hon. Member for North Cornwall responds in the same terms, I shall table such an amendment on Report.

Dan Rogerson (Liberal Democrat, North Cornwall)

I am grateful to the Minister for giving the matter a great deal of time and thought. I am sure that other hon. Members who know of such problems in their constituencies will bring them to his attention. I beg to ask leave to withdraw the motion.

Schedule 1

Jim Knight (Labour, South Dorset)

I beg to move amendment No. 26, in schedule 1, page 32, line 8, at end insert

‘over which the right is exercisable'

Michael Weir (Scottish National Party, Angus)

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

No. 41, in schedule 1, page 32, leave out lines 9 to 21.

No. 108, in schedule 1, page 32, leave out lines 9 to 11 and insert—

‘(b) in the absence of a commons association established for the land, all the other dominant tenements in proportion to the rights already existing on the land.'.

No. 39, in schedule 1, page 32, line 21, at end insert—

‘(2A)

(a) where a person proposes to sever a right of common to which section 9 applies by transfer under sub-paragraph (1)(a) the commons association may further transfer the right, with or without consideration, to another person who holds rights of common attached to land for the same common.

(b) where a commons association transfers land under (2A)(a) it shall cause the appropriate variation to the Register in accordance with section 7.'.

No. 40, in schedule 1, page 32, line 22, after ‘sub-paragraph', insert ‘(2A) or'.

Government amendment No. 27.

No. 69, in schedule 1, page 32, line 33, at end insert—

‘(4A) Subsection (4) shall not apply where Natural England or the Countryside Council for Wales can show that severance is necessary to achieve favourable condition of a Site of Special Scientific Interest notified under section 28(1) of the Wildlife and Countryside Act 1981, as amended.'.

James Paice (Conservative, South East Cambridgeshire)

Amendments Nos. 41, 39 and 40, which stand in my name, relate to the issue of the authorised severance of rights, as does the schedule. As drafted, the schedule makes it possible for those who want to transfer their rights voluntarily to transfer them to the commons association or to Natural England or the CCW in Wales. If they want to transfer them to the latter two, various things must be done under subsection (2).

There is some concern among the public about why Natural England or CCW would want, or should have, these rights. Neither organisation is likely to use grazing rights, as they are not farmers; they are not likely to want to cut turf or carry out any other rights that may be relevant. The understanding is that they will want to acquire them simply to extinguish them, to ensure that they are not used for conservation purposes. I question whether it is right for them effectively to extinguish those rights without other rights holders having the opportunity to be involved. Amendment No. 41 would remove the opportunity to transfer rights to Natural England or the CCW but leaves the possibility of transferring them to the statutory body.

Amendments Nos. 39 and 40 take a slightly different tack, which is probably preferable. They would enable the transfer to the statutory body but would then allow that body subsequently to transfer the rights, with or without some form of payment, to anybody else who already held similar rights on that piece of land, and that is the right way to proceed.

If there is a concern about over-grazing—there is in some cases, although on many commons there could increasingly be the problem of under-grazing—the process that the Bill sets up, the concept of statutory bodies having agreements under the stewardship schemes and so on, with Natural England and the CCW, is about the totality of management. That is the way to address the problems of over-grazing.

The remarks that I made on Tuesday are relevant in that regard: some people may have over-registered in the first place, for whatever reason, and that is often the cause of over-grazing. I strongly doubt that the people who over-registered will voluntarily transfer their rights to Natural England so that they can be extinguished; I might have more sympathy with the idea if that were the case.

I challenge the idea that Natural England or the CCW should be the recipients of the transfer of rights. If people want to give up their rights and transfer them, they should go to the association or statutory body, which should decide whether to keep them, to extinguish them or simply not to use them, which would be entirely within their rights, or to transfer them to other rights holders.

The under-grazing issue is especially relevant because the people who are most likely to want to transfer their rights are those who do not use them. It would be of no value to transfer them to Natural England to extinguish them, because they are not being used in the first place. Where there is a problem of under-grazing I contend that if those who are not using their rights could be persuaded to transfer them to the association and subsequently transfer them to someone who wants to use them it would go a long way to address the problem of under-grazing.

In some ways, this part of the schedule is backto front. As far as under-grazing is concerned, transferring to Natural England will not work. As far as over-grazing is concerned, agreements with Natural England through Government stewardship schemes are a better way forward than transfers, because I strongly suspect that the people responsible for the over-grazing will not be the ones voluntarily transferring their rights.

My amendments suggest that we should shift the balance and give the responsibility for agricultural management, which includes the use of rights, directly to the statutory body and let that body decide who should have the transferred rights. That is why I have moved the amendments. I hope that the Minister will consider them carefully.

David Drew (Labour, Stroud)

I rise to speak to amendment No. 69. The issue was brought to my attention by the Royal Society for the Protection of Birds, which wishes to take a slightly different perspective from the hon. Gentleman. The amendment would constrain the circumstances in which a commoners association, soon to be known as a commoners committee, could prohibit the transfer of severed rights to Natural England or the Countryside Council for Wales.

The Royal Society for the Protection of Birds is clear that it supports the Government position, as drafted in clause 9, that there should be a general prohibition on severance, as that will maintain the link between those who exercise rights of common and the local community for whose benefit such rights are exercised. However, the RSPB is worried that unless we amend schedule 1, it will be possible to sever commons rights. It is unclear why Natural England or CCW should not be the obvious recipient.

The RSPB’s main concern is that unless the Government reinforce what they are saying in clause 9, severance could go a step too far. Allowing a commoners association or committee to constrain the natural recipient—either Natural England or CCW—does not seem sensible.

The RSPB is concerned for two reasons. First, the Bill’s current wording could risk the loss of an important tool for delivering DEFRA’s public service agreement target for sites of special scientific interest, which requires that 95 per cent. of SSSIs by area should be in favourable condition.

Secondly, clause 28(3) disapplies section 28G of the Wildlife and Countryside Act 1981, which makes it clear that a commoners association or committee is not regarded as a public body with a duty to further the conservation of SSSIs consistent with its primary duties. The RSPB is worried that that would not necessarily be an ultimate priority of commoners committees, whereas it would be a prime responsibility of Natural England and CCW as public bodies. I hope that the Minister hears me and understands why those public bodies, with their particular responsibilities, are important as the natural recipients of severed land rights.

Dan Rogerson (Liberal Democrat, North Cornwall)

I rise to speak to amendment No. 108, which was tabled by my hon. Friend the Member for Brecon and Radnorshire and me. Its aims are broadly similar to those of the amendments tabled by the hon. Member for South-East Cambridgeshire.

We do not think that severance in principle is a good thing. We should like the rights to remain with the dominant tenements where they have customarily done so. If, however, it is felt for some reason that that must happen for the management of a common, we believe that it is vastly preferable that those rights should go to people who are actively involved in the life of the common.

Under-grazing is a growing problem. I could provide examples from Bodmin moor, where archaeologists are showing changes that have occurred and explaining how features of the landscape are no longer visible because of under-grazing. Under the single farm payment rÃ(c)gime and the move away from production, that problem is likely to grow. As for whether farmers in England will ever receive their payments under the single farm payment scheme, that is a discussion for another arena.

My final point relates to the history of common land and how it has been managed in the past. We have gone back to Acts dating from 1285 and the principle is that common rights are exercised by people who have dominant tenements in such areas. It is dangerous to move away from that principle, so we want the Minister to accept the amendment to prevent the rights from being moved to national organisations.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I shall speak in support of the amendment, and inso doing I shall quote the RSPB briefing. Itstates:

“Thusthe legislation provides a mechanism to facilitate the bettermanagement of common land through the reduction of stock in instancesof over-grazing, and reintroducing or increasing stock in instances ofunder-grazing.”

The RSPBappreciates that the problem of under-grazing has a knock-on effect onthe whole environment. Who better to deal with that issue thancommoners? Why should such matters be farmed out to a national body forit to decide what is best for local people? I do not follow such logic.If the Government are serious about the Bill, they must realise thatthe amendments are good. They would lead to a proper, balanced use ofthe common.

Thearguments advanced by the hon. Member for South-East Cambridgeshirewere persuasive, inasmuch as those who have over-registered will notcare what happens to the common. However, people who are on the groundday in, day out care passionately because, if their stock over-grazes,it will destroy for everyone not only themselves as farmers, but thewhole environment. The more local, the better. The amendment would plugthegap.

Jim Knight (Labour, South Dorset)

The powers of a commons association to dispose ofrights of common acquired under schedule 1 will be determined in itsestablishment order. The order could confer a freedom to dispose ofrights in gross as it thinks fit or it may provide that the associationmust retain the rights subject to arrangements for temporary letting.That will be a matter for discussion and negotiation in the context ofthe draft order. It is more appropriate to decide such matters on acase-by-case basis than to confer a blanket authorisation under theschedule. That is my response to amendments Nos. 39 and40.

James Paice (Conservative, South East Cambridgeshire)

I appreciate that time is short, but we need to getmatters clear. If what the Minister said is the case, what is thepurpose of schedule 1? If we are to have flexibility, a word that thehon. Gentleman has used repeatedly in Committee, and settle suchmatters under individual orders for individual associations, why do weneed schedule 1? It stipulates clearly the rules governing who shouldtransfer to whom and how in cases of authorised severance. I press himfor clarification of the interaction between schedule 1 and theflexibility under the order to which hereferred.

Jim Knight (Labour, South Dorset)

I may receive clarification, but I think that theorder is flexible only as regards the actions of the commonsassociation in respect of severance. Obviously, not everywhere willhave commons' associations. There are clear restrictions on suchmatters.

As foramendment No. 41, the powers of severance under paragraph 1 arelegitimate tools available to Natural England and the CountrysideCouncil for Wales to help tackle problems of over-grazing. I agree inprinciple with what the hon. Gentleman said about under-grazing.Natural England seeks to retain the powers only to tackle over-grazingas a last resort. There is also a role for Natural England where thereis under-grazing and no commoner is willing to exercise his or herrights. In such a case, Natural England could perhaps acquire rights byseverance in order to reintroduce grazing if it thought that that wasthe best option.

Wecannot reasonably expect all upland commons to be managed by commonsassociations or entered into agri-environment agreements. Elsewhere,where co-operation remains unforthcoming, we may have no othereffective mechanism to help reduce over-grazing but to acquire and sequester rights so that grazing pressures are reduced. There are nopowers to require rights to be sold. They must be sold, as the hon.Member for South-East Cambridgeshire said, with the vendor’sconsent.

Voluntaryacquisition of rights by English Nature has sometimes been disruptiveof existing hefting patterns. We have therefore amended the Bill toimpose a duty on Natural England to consult voluntary commoners' association before proceeding. We do not think that the powers will bewidely used. To date, they have been used only in a limited number ofcases, but it would be foolish to throw away a power that may still berequired to help the achievement of the PSA target.

I now come toamendment No. 69 tabled by my hon. Friend the Member for Stroud. I amgrateful to him for his suggestion. However, we think that it isunlikely that Natural England or CCW will act to acquire rights in thatway, other than in the most pressing circumstances, namely where thereis no other reasonable way of reducing grazing activity on designatedcommon land. His amendment will therefore effectively neuter the effectof paragraph 1(4) of the schedule, because it would refer to the onlycircumstances in which the provision is likely to haveeffect.

However, webelieve that it is very unlikely that Natural England will need toacquire rights by severance on a common in which a commons association is established. That would suggest that the association isseverely underperforming. So although an association may possess aveto, it would reflect poorly on the association if it were ever calledon to contemplate exercising it. At that point, Natural England mightwell talk to the National Assembly for Wales or the CCW about theperformance of the association, so we see no practical need to amendparagraph 1(4) in this way.

Finally, I turn to amendmentNo. 108 tabled by the hon. Member for Brecon and Radnorshire. The hon.Member for South-East Cambridgeshire asked an interesting question onTuesday, when we discussed clause 8 stand part. He asked whether rightscould be deployed if the dominant tenement was fully surrendered todevelopment. The amendment could perhaps provide an answer to thatquestion. The owner of the dominant tenement could sever the rights andsee them redeployed to other commoners. I can see the attraction inthat it would help the rights remain in agricultural use, even when thedominant tenement had been taken out of agricultural use.

For the most part, we thinkthat clause 11 provides a sufficient answer. Complete development willseldom arise, but we also foresee real difficulties with thatparticular approach. How many commoners, even though selling out theirfarm for development, would want to distribute their rights among allthe other commoners in the community? We all know of situations inwhich there is festering antipathy between one group of commoners andanother. How would the outgoing commoners secure payment for the rightsif the transaction were on the basis of all or nothing?

More practically, many of ourcommons are not neatly registered as one common with a clear statementof rights held by each commoner. Rights are often exercisable overdiffering areas of the common or over more than one common. In suchcases, the formula proposed under the amendment could cause endlessbickering. However, I am still thinking about the scenario that wasoutlined by the hon. Member for South-East Cambridgeshire on Tuesdayand, if I come up with a magical solution, I will offer it onReport.

David Maclean (Conservative, Penrith and The Border)

I beg to move amendment No. 105, in schedule 1,page 33, line 45, leave out ‘and his consentobtained,'.

Michael Weir (Scottish National Party, Angus)

With this it will be convenient to discussamendment

No. 63, inschedule 1, page 34, line 3, at endinsert

‘including provision thatthe appropriate national authority may deem that the consent of theowner of the land has been obtained where it appears to the authoritythat such consent has been withheldunreasonably.'.

David Maclean (Conservative, Penrith and The Border)

We now come to one of the most crucial amendmentson the amendment paper, and that is not just my arrogant opinion, butthat of the Federation of Cumbria Commoners which the Minister waspleased to praise earlier for issuing excellent guidance. He said thathe was keen to follow that guidance so I hope that he will be keen alsoto follow its guidance and advice on theamendment.

Theamendment seeks to delete: “and his consent obtained”.That means that the owner of the land, who in 90 per cent. of caseswill be the lord of the manor, will have his consent deleted. He wouldhave to be notified, but would not have to consent. Why am I doingthis? I have two reasons. Never before has a lord of the manor orlandowner had the legal right to consent to atransfer—

Jim Knight (Labour, South Dorset)

I am grateful to the right hon. Gentleman forgiving way, particularly as he has only just begun his argument. Incase something irritating happens and delays us discussing the matterfurther, I shall say now that I am actively considering the amendment.If we do something about it, we would need the consent of the Lords.Perhaps he might help facilitate that. I shall flesh that out if I havetime to respond more fully, but I thought that I would let him know atan early stage that I am sympathetic to hisargument.

David Maclean (Conservative, Penrith and The Border)

I am delighted that the Minister is sympatheticand therefore I will not press my argument any further.

I hope that the Minister willagree that his colleagues in the Lords should be willing also to acceptit. I know that they have a different view, perhaps because they havelarge landholding and grouse-shooting interests unlike the commoners. Iam delighted that a Labour Government will at last back the commonersover those with big vested shooting interests. I support the right ofpeople to manage their grouse moors and to shoot on them, but theyshould be paying the market price for buying up commoners’rights. If I had such a veto and was a grouse-owning landlord I wouldveto every transfer of rights. The rights would then become worthlessand I would buy them up for a song myself. We need to avoid that and Iam delighted that the Minister has said that he basically accepts thespirit of the amendment and will do something about it onReport.

I am slightlyout of sync with my hon. Friend the Member for South-EastCambridgeshire and his amendment because I believe that it would bedifficult to prove “unreasonably”. If I owned the rights,it would not, in my view, be unreasonable to object to their transferbecause I wanted to buy them myself. So my amendment goes slightlyfurther than that of my hon. Friend, but I am delighted that inprinciple the Minister might be willing to accept it, or something likeit.

Jim Knight (Labour, South Dorset)

I advise the right hon. Gentleman that I am morelikely to accept the amendment from his hon. Friend the Member forSouth-East Cambridgeshire, but that is something that we can discuss.We can correspond and possibly even meet up to do so.

I expressed nervousness aboutthe other place. The Bill is the result of a compromise achieved in theother place and if we are to push further we need to be confident thatwe do not start parliamentary ping-pong. I am sure that none of uswould likethat.

James Paice (Conservative, South East Cambridgeshire)

I do not want to detain the Committee, but I wouldlike to put something on the record. Obviously if the Minister acceptsmy amendment I would be very happy, but I would be equally happy withthat of my right hon. Friend. The principle is that we have bothidentified a key problem that needs to be addressed, and I, too, wouldbe happy to negotiate with our friends in the other place ifnecessary.

Jim Knight (Labour, South Dorset)

That is all very helpful. The sensible thing wouldbe for me to correspond with the right hon. and hon. Gentlemen, copyingin other Committee members, in the run-up to Report to ensure that wecan achieve a successfulconsensus.

David Maclean (Conservative, Penrith and The Border)

I would not say that a compromise was reached inthe other place; we just could not get the votes to go as far as wewanted to. It is refreshing and interesting for a Labour Minister tosay, “The view in the Lords must prevail; we cannot upsetthem”. That is an intriguing thing to happen in thisCommittee.

I hopethat if the Minister and the Committee are in agreement, the primacy ofthe Commons might actually prevail on this occasion. We will do ourbest to persuade those in the Lords who might be taking the Tory whipthat this is the way in which we wish to proceed. However, if on Reportthe Minister brings forward my amendment, or deletes the relevantwords, and the Commons votes overwhelming for it, I am certain thatping-pong will not last long before their lordships agree to the senseof what the Commons has done. I beg to ask leave to withdraw theamendment.

Schedule2

David Drew (Labour, Stroud)

I beg to move amendment No. 89, in schedule 2, page36, line 19, at endinsert—

‘(2A) This paragraphdoes not apply to land owned or managed by a local authority, board ofconservators or charity as an openspace.'.

Michael Weir (Scottish National Party, Angus)

With this it will be convenient to discuss thefollowing:

Governmentamendment No.28

Amendment No. 90,in schedule 2, page 37, line 6, at endinsert—

‘(3A) This paragraphdoes not apply to land owned or managed by a local authority, board ofconservators or charity as an openspace.'.

David Drew (Labour, Stroud)

We are running out of time, so I shall be quick. I have not tabled the amendment just to get the board of conservators into the Bill. The amendment is important. It applies to those open spaces that were provisionally registered by their public body owners in the knowledge that that was not strictly correct, because all rights of common had been acquired and extinguished many years previously—nevertheless, no objection was raised and the registration became final. It is believed that that was done to perpetuate the memory of historic status. The amendment applies largely to urban centres, particularly London, where there are still a number of metropolitan commons as defined under the Metropolitan Commons Act 1866.

I move the amendment on behalf of the Open Spaces Society. I shall read the final sentence of its submission:

“It would be mischievous pedantry for this to be reopened now with no benefit to anyone, and the amendment would prevent this.”

Jim Knight (Labour, South Dorset)

The purpose of paragraphs 4 and 5 of the schedule is to enable rectification of the register when land can be shown to have been wrongly registered under the Commons Registration Act 1965.

I cannot agree to the amendment; it would not be right to exclude certain types of landowner from the benefit of the provisions. As I understand it, the amendment accepts that land owned by some local authorities may have been incorrectly registered, but as those authorities’ purpose in seeking to remove the land from the register may be motivated by the possibility of development, we should make a special case for them.

I do not accept that. I certainly recognise the possibility that some authority-owned land was registered without objection, notwithstanding that its eligibility for registration was doubtful; some parks and recreation grounds may fall into that category. I find it less credible that we should expect a flood of applications from opportunist councils and charities to have the land removed from the register.

The provisions of the schedule should apply equally to all landowners. We should not say that we acknowledge that some land was improperly registered and that we are going to enable the land to be removed from the register, but that we do not trust local authorities to do the right thing. It is certainly possible that some wrongly registered land will be developed as a result of application under schedule 2. That would be unsurprising, because a mistake in registration may have held up development. However, we cannot complain about that result. I hope that my hon. Friend will withdraw his amendment.

David Drew (Labour, Stroud)

I beg to ask leave to withdraw the amendment.

Schedule 4

David Drew (Labour, Stroud)

I beg to move amendment No. 36, in schedule 4, page 41, line 28, leave out

‘on or after 28th June 2005 but'.

I move this amendment, tabled in my name and that of my hon. Friend the Member for Sherwood. We seek clarification on why a specific date is set. The implication is that any transitional arrangements for enforcements against unlawful works under this schedule prior to that date will no longer be permitted. We are disappointed that, along with the lack of a specific duty on local authorities to take action against unlawful work, that element of the schedule would seem to be a diminution. I could quote many cases, but I shall sit down and either allow the Minister to say something or allow my hon. Friend the Member for Sherwood, who has now risen, to back up what I was saying.

Paddy Tipping (Labour, Sherwood)

I am conscious of the time, and I apologise to my hon. Friends. The amendment’s intention is to return the Bill to the form in which it was originally published. Perhaps the Minister will tell us why the proposal to insert the June 2005 date was accepted in the House of Lords. Many obstacles across the country prevent a right to roam. Had that date not been put in the Bill, people who feel strongly on those issues could have taken enforcement action. Powers are available for the future but not in respect of the past.

Jim Knight (Labour, South Dorset)

As my hon. Friend the Member for Sherwood has just said, the Bill extends the power to seek enforcement action against unlawful works to any person or organisation in future. Amendment No. 36 is about the past. The issue it raises boils down to whether any person or organisation should be able to ask the court to enforce against unlawful works that were undertaken before the Bill began its passage through the other place.

In practice, the question is not that simple. The Limitation Act 1980 rules out enforcement against works undertaken more than 12 years ago, and the effective window for action tends in fact to be much shorter than that, because the courts, which have a discretion rather than a duty to act, tend to look critically at any suggestion that they should enforce against works that are more than a few years old. So, there is likely to be a limited number of cases in which the amendment would make a practical difference to the enforcement position.

Our view is that where works were undertaken within that narrow time window without consent, it would not be right for us to open up the scope for anyone at all to seek enforcement action. In the end, those responsible for such works did what they did, and bore the cost of doing so, on the basis of the limited enforcement regime that then applied. There is a strong presumption against legislation having a retrospective effect. We think that the provision as it stands, without the amendment, strikes a fair balance. We do not think it would be just to allow any person—

Tom Levitt (Labour, High Peak)

I shall be very brief. If an existing barrier were to be changed, does the Minister envisage that it would count as a new barrier, which could then come under the clause as the Minister envisages it, or would it be caught under the old pre-June 2005 issue?

Jim Knight (Labour, South Dorset)

If further works, such as maintenance or an extension, are undertaken in relation to old works, that may allow any person to take enforcement action against them if the new works do not have consent. I hope that answers my hon. Friend’s question. I hope that on that basis, my hon. Friends will not press the amendment to a Division.

David Drew (Labour, Stroud)

I beg to ask leave to withdraw the amendment.

The rest of the debate is in Hansard.