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Where a commons council is established over one or more commons, voluntary commoners’ associations may continue to exist and play an important role in the day-to-day management of individual commons, as I tried to outline to the hon. Member for Hexham (Mr. Atkinson) a few moments ago. For example, they may co-ordinate the activities of graziers in managing their livestock to comply with rules made by the commons council. Voluntary associations cannot, and should not, be given free-standing statutory functions. A commons council will be given statutory functions only after following an establishment procedure and consulting interests in the common to ensure that there is substantial support for its proposals. In our view, it would be quite inappropriate for a council to be able to divest itself of
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statutory functions to voluntary associations that have no legal foundation and may not be representative of all the interests in a common.

3.30 pm

A large commons council covering multiple commons may, however, set up committees or sub-committees to address specific issues, or even to manage activities on a particular common on behalf of the council, but responsibility for the statutory functions of the council must remain with that body. I should clarify the fact that voluntary associations will not have a formal role within a commons council. Membership of the council will typically be established by democratic election, and it would not be right automatically to appoint a voluntary association to serve on the council, because it will not necessarily represent all commoners. Of course, there is no reason why members of the voluntary association could not put themselves forward for election to the council. While we expect that there will be situations in which commons councils work alongside voluntary associations, they will not automatically consist of voluntary associations, as the amendment proposes. I therefore urge the hon. Member for Brecon and Radnorshire (Mr. Williams) to withdraw his amendment.

Amendment No. 117 would enable a local authority actively to manage an unclaimed common. Under section 9 of the Commons Registration Act 1965, which is re-enacted in clause 45, local authorities already have powers to protect unclaimed common land. In that context, protection means taking action against unlawful interference—for example, seeking a court order against caravans drawn onto the common, or dealing with an encroachment. The amendment, however would enable an authority to go further, so that it could manage the land as if it were itself the owner. On the face of it, that seems a sensible step.

We support the aim of enabling local authorities to manage unclaimed common land, which is why clause 50 amends part I of the Commons Act 1899 to update existing powers to make a scheme of management for common land and allow management to be vested in the local authority. That is the best approach to managing unclaimed common land. A scheme of management ensures that the authority has clear powers to administer the common in the interests of the local community, but it ensures, too, that the authority has clear responsibilities.

Making a scheme is straightforward and relatively cheap—a scheme recently made by Forest of Dean district council cost less than £700. Alternatively, it would be open to the local community to seek to establish a commons council for the land, and the local authority could help to facilitate that. The management of the common would be in the hands of the commons council, rather than the authority. A commons council will have all the powers needed to manage common land, even when the owner cannot be identified, and thus ensure that the objective of better management, which I share with the hon. Member for Brecon and Radnorshire, can be achieved.

Unfortunately, the effect of the hon. Gentleman’s amendment is much less clear. It would certainly allow an authority to plant trees or cut the grass, but by doing so, would it acquire any of the duties of an owner or occupier, so that, for example, it would be obliged to make safe any dangerous trees, or dispose of fly-tipped
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waste? What would happen if the commoners objected to what the authority had done, or if the owner turned up and wanted the authority to remove the trees that it had planted the previous year? Those difficulties are resolved by schemes of management, but not by the hon. Gentleman’s proposals. I can appreciate his indifference to such schemes, as he may fear that local authorities will not take the initiative to make new schemes. However, we are already committed to advising local authorities on their new powers under the Bill in a circular, which we intend to publish as part of the implementation programme following Royal Assent.

We want to reinvigorate the powers in the 1899 Act by changing the Bill and by commending those changes to local authorities. However, we cannot advise local authorities, and we do not think that it would be right to, to dip in and out of the process of commons management, as the amendment suggests, because it must be a case of all or nothing. It is right that authorities can step in, when required, to protect common land, but that does not imply that they have wider responsibilities for that land. If a local authority wants to go further than that, it should make a scheme of management so that everyone is clear about its role and responsibilities.

Those are important aspects of the scheme, and it is right that those matters are covered comprehensively in the scheme rather than being left uncertain, as this amendment would have it. Once again, I am unable to support the amendment, which I ask the hon. Gentleman to withdraw.

Mr. Williams: I have listened to the Minister’s comments, and on the basis of his opinions, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32

Ancillary powers

Amendments made: No. 47, in page 18, line 22, leave out ‘association' and insert ‘council'.

No. 48, in page 18, line 30, leave out ‘association' and insert ‘council'.

No. 49, in page 18, line 33, leave out ‘association' and insert ‘council'.

No. 50, in page 18, line 34, leave out ‘association' and insert ‘council'.

No. 51, in page 18, line 35, leave out ‘association' and insert ‘council'.— [Mr. Watts.]

Clause 33


Amendments made: No. 52, in page 18, line 38, leave out ‘association' and insert ‘council'.

No. 53, in page 18, line 41, leave out ‘association' and insert ‘council'.

No. 54, in page 19, line 1, leave out ‘association' and insert ‘council'.

No. 55, in page 19, line 5, leave out ‘association' and insert ‘council'.

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No. 56, in page 19, line 6, leave out ‘association' and insert ‘council'.

No. 57, in page 19, line 9, leave out ‘association' and insert ‘council'.

No. 58, in page 19, line 16, leave out ‘association' and insert ‘council'.

No. 59, in page 19, line 19, leave out ‘association' and insert ‘council'.— [Mr. Watts.]

Clause 34

Enforcement of rules

Amendments made: No. 60, in page 19, line 34, leave out ‘association' and insert ‘council'.

No. 61, in page 19, line 43, leave out ‘association' and insert ‘council'.

No. 62, in page 20, line 1, leave out ‘association' and insert ‘council'.

No. 63, in page 20, line 4 , leave out ‘association' and insert ‘council'.— [Mr. Watts.]

Clause 35

Rules: supplementary

Amendments made: No. 64, in page 20, line 12, leave out ‘association' and insert ‘council'.

No. 65, in page 20, line 13, leave out ‘association' and insert ‘council'.

No. 66, in page 20, line 19, leave out ‘association' and insert ‘council'.

No. 67, in page 20, line 24, leave out ‘association' and insert ‘council'.— [Mr. Watts.]

Clause 36

Consequential provision

Amendment made: No. 68, in page 20, line 30 , leave out ‘association' and insert ‘council'.— [Mr. Watts.]

Clause 37

Variation and revocation of establishment orders

Amendments made: No. 69, in page 21, line 10 , leave out ‘association' and insert ‘council'.

No. 70, in page 21, line 12, leave out ‘association' and insert ‘council'.

No. 71, in page 21, line 13, leave out ‘association' and insert ‘council'.

No. 72, in page 21, line 15, leave out ‘association' and insert ‘council'.

No. 73, in page 21, line 20, leave out ‘association' and insert ‘council'.

No. 74, in page 21, line 22, leave out ‘association' and insert ‘council'.

No. 75, in page 21, line 25, leave out ‘association' and insert ‘council'.— [Mr. Watts.]

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Clause 38

Prohibition on works without consent

Mr. Paice: I beg to move amendment No. 114, in page 21, line 36, at end insert—

‘(2A) Subsection (2)(a) does not include works for the purposes of—

(a) the safety of users of the Common; or

(b) animal welfare; or

(c) conservation;

Provided that they are either—

(i) necessary for immediate reasons whilst consent is obtained under subsection (1); or

(ii) constructed for a limited period as may be specified in Regulations made by the appropriate national authority.'.

Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss the following:

Government amendments Nos. 76 to 80

Amendments No. 121, in page 43, line 35 [Schedule 4], leave out

‘on or after 28 June 2005 but'.

Mr. Paice: I welcome the Government amendments that deal with the issue of the National Trust. Again, we referred to that matter in Committee, where I tabled those amendments. In Committee, the Minister said that the amendments were not necessary, so I am glad that this Minister has acceded to them. Ministers often say, “It is not necessary to include such and such provision, because it is implicit somewhere else”, which usually leads Opposition Members to argue, “If it is not going to do any harm, why don’t you put it in the Bill for clarity?” Ministers usually resist such moves, but this Minister has not done so on this occasion, which is welcome.

Amendment No. 114 concerns works on commons, which we debated at some length in Committee and about which the Minister and I have had further discussions. I suspect that the Minister will argue that clause 38 is similar to existing legislation, so there is not a problem. However, I suggest that we should take this opportunity to make sure that there is not a problem in the future. There are obviously far more users of commons than there used to be, including not only graziers, but pedestrians and dog walkers.

The amendment is straightforward. It is designed to eliminate the problem of people, organisations and commons councils having to apply to the national authority for permission to do temporary or urgent works. The three purposes for which it would be possible to carry out such works are human safety, animal welfare and conservation. However, those purposes would not be sufficient in themselves, because the second part of the amendment adds two further provisos—first, that the works must be urgent, and, secondly, that they must be temporary.

We debated temporary works in Committee. The hon. Member for Sherwood (Paddy Tipping) will recall that we discussed electric fencing to keep livestock off roads during the grazing season, and there was some debate about how long is “temporary”. I have not tried
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to specify the period of time and suggest that the matter could be dealt with by regulation, which would allow the Minister to consult before drawing a conclusion. The circumstances in which I envisage the issue of urgency arising involve, for example, floodwater rendering part of a common dangerous for children. There are town commons in my constituency where people roam, and much of my constituency is fenland, which, because it is close to sea level, is prone to flooding. It might be sensible to erect emergency fencing, even if it is that dreadful orange plastic stuff that is used around roadworks, to keep children out of deep water.

Other commons may have old pit shafts where ground could suddenly collapse as a result of torrential rain, again creating a need for emergency safety provisions for children and livestock. It is by no means unknown for sheep to fall down into such places. In terms of conservation, there may be a wild plant that is flowering and should be protected until it has set its seed, or a wild bird such as a hen harrier or other bird of prey that is nesting on the ground and needs to be protected for a short period.

I find it incredible that in all the examples that I have cited it should be necessary to apply to the national authority—in England, the Secretary of State—for permission to act. I would be very surprised if someone was able to get that permission in a matter of hours, yet a situation involving floodwater or the collapse of old mine workings is certainly an emergency, and there should be an ability to erect something very quickly.

I cannot pretend that I am standing here in huge anticipation that the Minister will welcome and accept my amendment with open arms, but it concerns a genuine issue. I have bent over backwards in devising it to make it as minimal as possible in addressing the concerns that his predecessor expressed in Committee. It is limited to specific examples but would reduce the need for councils or landowners to seek consent from the national authority without good cause. It defies belief that a council should have to go through this procedure in an emergency, thereby creating a period of risk for perhaps several weeks while the relevant authorities carry out all the necessary deliberations and consultations before a decision is reached. I am not trying to circumvent the need to apply for consent, but merely to allow for a temporary arrangement in an emergency while it is being sought.

This requires a sense of proportion and common sense. The Government rightly and understandably want to protect the rights of commons users other than graziers, such as walkers and people using the open access provisions, but I am trying to protect them as well. They could be at risk from some of the situations that I described, and it should be possible to protect them as soon as that is necessary. The same applies to the conservation of flora or fauna.

There is no need for me to speak at any greater length. I think that the case is clear, and I hope that I have made it so. I tried to devise an amendment that the Minister would find acceptable and that is relatively minimal while addressing the fundamental problem. It has received support from outside organisations such as the National Farmers Union. I hope that the Minister will understand its importance and be prepared to accept it.

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Paddy Tipping: I am pleased to follow the hon. Member for South-East Cambridgeshire (Mr. Paice), who stressed the importance of managing the different interests, needs and conflicts in the countryside. I want to press that line of thinking with the Minister.

Government amendments Nos. 77 and 78 provide a discretionary power to ensure that clause 38 does not revive controls that ceased under section 194 of the Law of Property Act 1925. The Minister wrote helpfully to all members of the Committee on 23 June 2006. He said that he felt that the amendments were necessary because of one example—Warcop military training estate in Cumbria, in the constituency of the right hon. Member for Penrith and The Border (David Maclean). I know Warcop common, which is an attractive, exciting piece of countryside, and he will know that the MOD manages it well, but there is potential conflict between the MOD’s purposes and the desires of walkers and ramblers in the north Pennines. I ask the Minister to put on record what he put in his letter—that if this discretionary power is used, there will be full consultation by MOD estates. The conflict of interest can be resolved and it is important to do that.

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