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There are hound trails in my constituency, too. When I attended the Pont ar Elan show a week ago last Saturday, it was a privilege to see not only hound trails
but also dog racing on the common; but it was taking place with the express permission of the commoners’ association. Our amendment would address only activities that were undertaken against the express will of commoners’ associations, but as I would not want the Minister’s weekends disturbed by people ringing up to report informal dog racing, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 81, in page 27, line 8, leave out ‘association' and insert ‘council'.
No. 82, in page 27, line 18, leave out ‘association' and insert ‘council'.— [ Mr. Watts. ]
Barry Gardiner: I beg to move amendment No. 83, in page 31, line 36, leave out ‘1' and insert ‘1(4)'.
This minor and technical amendment deals with a transitional provision in the clause. References in the Bill to Natural England are to be taken as references to English Nature until that body is formally dissolved. The amendment ensures that the provisions function effectively in relation to the commencement of section 1 of the Natural Environment and Rural Communities Act 2006, because, at present, clause 57 refers to the commencement of section 1. However, that gives rise to some uncertainty, because section 1 has already been commenced to the extent of establishing Natural England as a skeleton body. The amendment makes it clear that the transitional provision has effect until English Nature is abolished on the commencement of subsection (4) of section 1, which we expect to take place on 2 October this year.
David Maclean: This is a small technical amendment and I rise on a small technicality. We received a briefing from English Nature which refers to the letter Sir Martin Doughty received from the Minister, no doubt relating to this clause among others. There is a lot of detail about Sir Martin’s reply to the Minister but we have not actually seen the Minister’s letter, so my first brief point is that I hope the Minister will put a copy of the relevant letter to Sir Martin Doughty in the Library. For accuracy, I shall quote a few words from the briefing:
“The Parliamentary Secretary for Biodiversity, Landscape and Rural Affairs wrote to Sir Martin Doughty, Chair Designate of Natural England, following a debate at Standing Committee concerning Natural England’s role in the implementation of the Commons Bill. In his response of 24 May 2006, Sir Martin highlighted the considerable importance of Common Land for a wide range of public interests, justifying significant involvement for Natural England within and beyond the confines of the new legislation. He agreed that Natural England should assume a central responsibility for the management and protection of common land, and of town and village greens, and expressed confidence that this role of ‘public sector champion’ could be achieved without any requirement for a specific statutory duty.”
The second part of my technical point is that I hope that, in addition to the first letter that the Minister wrote to Sir Martin, which he will put in the Library, we will have sight of the next letter he is going to write to the wonderful Sir Martin Doughty, saying, but in better civil service language, “Get back in your box, Sir
Martin. You will stick within the confines of the legislation, and you will not become a champion for the management of our Cumbrian commons—which you have never done before—without any statutory cover for doing so. You will not go beyond the confines of the new legislation.”
I do not want to labour this little point. English Nature is superb in many of the things that it does but it has no track record of managing our wonderful Cumbrian commons. The idea that it is suddenly going to become public sector champion of running Caldbeck common on our fells, and that it is going to go way beyond its statutory duties and do things beyond the confines of the legislation, is not acceptable. I hope that the Minister will say, “Sir Martin: carry on doing the wonderful job you are doing in Natural England, do it within the law, do it within the spirit of the Act, but do not step out of the box too much.” I just wanted to make that technical point.
Barry Gardiner: Technology has obviously moved on since my day if that is a technical point. I am happy to accede to the right hon. Gentleman’s request that the correspondence be placed in the Library. I think that the original letter was from my predecessor, my hon. Friend the Member for South Dorset (Jim Knight), now the Minister for Schools, but I am happy to make the correspondence available.
I probably have no need of correspondence with Sir Martin Doughty because he will no doubt read today’s Hansard and will read the right hon. Gentleman's remarks for himself. I suspect that the right hon. Gentleman may be the one who enters into further correspondence with Sir Martin.
Amendment made: No. 84, in page 32, line 29, leave out ‘association' in both places it occurs and insert ‘council'.— [ Mr. Watts. ]
Amendments made: No. 85, in page 34, line 8, leave out ‘association' and insert ‘council'.
No. 86, in page 34, line 19, leave out ‘association' and insert ‘council'.
No. 87, in page 34, line 32, leave out ‘association' and insert ‘council'.
No. 88, in page 34, line 33, leave out ‘association' and insert ‘council'.
No. 89, in page 34, line 35, leave out ‘association' and insert ‘council'.
No. 90, in page 35, line 2, leave out ‘association' and insert ‘council'.
No. 91, in page 35, line 17, leave out ‘association' and insert ‘council'.— [ Mr. Watts. ]
David Maclean: I beg to move amendment No. 115, in page 36, line 6, leave out ‘must' and insert ‘may'.
Mr. Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 92 to 94.
David Maclean: I suspect that I have been struck off the English Nature cocktail party list for the foreseeable future.
I will use the short speech rather than the long speech that I have with me today. It was drafted for me by the Federation of Cumbria Commoners, and I make no apology for that; it will be one of the better speeches that I have made on the Bill, if I stick to the script.
First I pay tribute to the Minister, and particularly to his civil servants, who have been assiduous in paying attention to and trying to balance the different views of commoners but paying attention to what the Federation of Cumbrian Commoners had to say. They visited the area at least twice to obtain indepth knowledge of how the commons are run.
I know it is a common view among farmers that no one in the Rural Payments Agency or the Department for Environment, Food and Rural Affairs has ever seen a cow or a sheep, but those I have talked to in Cumbria are very appreciative of the state of knowledge of the DEFRA civil servants who have been dealing with the Bill. They should be promoted to the bananas directorate, which I understand involves a nice bit of foreign travel. They cannot go to the Wine Standards Board; that is another good number, but the Department is giving it away to the Food Standards Agency.
Amendment No. 115 is an important little amendment. It is not just a technical one, and it is not an amendment in the style of my late right hon. Friend Eric Forth MP, who would have always moved amendments of this nature. The federation says that it is strongly in favour of this amendment because it ensures that there is flexibility as to whether or not owners’ consent will be required if an order is issued allowing local severance.
This is a compromise on my part. In Committee I strongly took the view that this part of the clause should be deleted, that there should be no circumstances where the Government should have this power, and that owners' consent should never, ever be required. I now accept that this is a sensible compromise that does not tie the Minister’s hands either way.
The Cumbrian commoners accept that there is differing practice across the country and the Bill deals with that through not making severance indiscriminately available. Their concern is to make sure that an order works if and when it is made. Without the amendment, there is a risk that it will not. As the Bill stands, an order allowing local severance is of little value, because it requires the owner of the soil of the common to consent to the transfer and it will rarely be in the owner’s interest to give that consent.
In Cumbria, severance has been commonplace for many decades without owner’s consent. My amendment will ensure that if an order is made allowing severance on a local basis, the national authority will not have to require the owner’s consent.
It may or may not decide to do so, depending on the particular situation and having regard to any representations made to it.
The relationship between the owner of the soil and the owner of common rights is not the same as that captured in landlord and tenant legislation. They both have freehold interests. Having one person restricting the property rights of another is quite different from the state licensing the exercise of property rights—for example, through planning laws. It may even be a breach of human rights legislation to give one person the right to interfere with the rights of ownership of another.
The Government have tabled an amendment that would deem that consent has been given if it is considered to have been unreasonably withheld by the owner. That is not adequate by itself. In many cases, the cost of fighting an owner’s veto will exceed the value of the transaction to the commoner. From the perspective of the Cumbrian commoners, the absolute requirement for consent in effect turns the clock back to a feudal era. It is inappropriate for the 21st century.
Mr. Atkinson: In many cases, those common rights have considerable financial value in the sense that, if a farm is sold, the common rights are sometimes sold separately. If the Bill is not amended, it will mean that somebody who paid additionally for those common rights could lose a substantial amount of that value when they came to sell them again.
David Maclean: That is absolutely right. The rights would have little value then. I perfectly respect those who manage our countryside and have shooting rights, but their interests are different from the interests of small farmers and commoners. Quite simply, if I were the lord of the manor and I had the shooting rights, I would be the nasty sort who would veto every single transfer. The rights then become valueless and I buy them up cheaply and improve my own shooting rights. That is a legitimate thing for the person with the shooting rights to seek to do, but the House of Commons should not make it easier for that person by devaluing the value of the rights. If someone wants to buy up the rights of grazing to improve his shooting, let him do so, but let him, or her, do so at full market value. The amendment permits an even playing field. People can buy up the rights if they want to and the owner can sell them at the commercial rate.
We have given the Minister flexibility. I understand that he might be sympathetic to the amendment. I have checked with our Front-Bench spokesman in the other place and she is content, so I am confident that we will not have to deal with the matter again in this Chamber. I implore the Minister to grasp the nettle and ensure that there is fair play for all who are involved in the management of the countryside.
Mr. Paice:
Unusually, I am going to cross swords slightly with my right hon. Friend the Member for Penrith and The Border (David Maclean). He well knows that the current phrasing of the Bill is the result of a lot of discussion in the other place, where the Bill started its proceedings, and stemmed from concern that—picking up on the point that he made—those who have sporting interests on the moors, and particularly on the Yorkshire moors, would find them seriously damaged if the rights were sold or transferred in a way
that was not helpful overall. There was a lot of discussion in the other place and that is how the current words came to be included. I fully recognise—as I am sure that he will acknowledge that I did in Committee—that to give the landowner the absolute right of veto is wrong. That is why, in Committee, I proposed moving forward on the basis that, if the landowner unreasonably withheld consent, the Minister should be able to override that. I remain of that view, so I welcome Government amendments Nos. 92 to 94. The question is whether we need to go a step further, as my right hon. Friend proposes.
4.45 pm
As I read the Government amendments, they say that if a Minister feels that a landowner has unreasonably withheld consent, that can be overridden. I should point out to my right hon. Friend that we will be considering few such cases in the future because the Bill is designed to end the principle of severance, rather than to allow severance. The Minister would be required to issue an order before severance could take place. Under the Government amendments, he would then have to consider whether consent had been unreasonably withheld.
The Bill already requires the Minister to consult everyone, including the owners of the land or their representatives. My right hon. Friend’s amendment relates to the measure that says that the Minister “must” make provision for whether the landowner has given consent. I am not sure whether the extra step of changing the word “must” to “may” is really necessary. I take the view—this is in some ways where my right hon. Friend and I slightly disagree—that a landowner is a property owner with certain rights. Yes, he would get consulted, but he should have a bit more say than that. I was happy with the compromise that was agreed among the different views in another place, which is represented by the Government amendments, but I am not entirely convinced that the Government would be right to accept the word “may” instead of “must”.
If the Minister were to accept my right hon. Friend’s amendment, he would obviously take account of the geographical location of the individual common in question when making an order, and of where the rights to the common pertained. He would also take account of whether the location was an area such as Cumbria, where the landowner’s consent would not be especially relevant, an area on the other side of the Pennines, or a place such as the constituency of my hon. Friend the Member for Hexham (Mr. Atkinson). However, my right hon. Friend’s amendment would give the Minister more discretion than the Government amendments.
My right hon. Friend has expressed concern in conversations with us about giving the Minister discretion to decide what unreasonably withheld consent is. However, his amendment would give the Minister even more discretion, not less. It is for that reason that I have yet to be convinced of it. I am sure that the Minister will make his views clear. I do not for a moment suggest that we will divide the House if he wishes to accept the amendment, but I am certainly not convinced that everyone in the other place will be happy with it. If the amendment goes forward to the other place, we will have to see what it decides. It would be a pity if the huge degree of consensus on the Bill overall, to which we will refer on
Third Reading, was lost on this matter, but I fear that that could be the case. I look forward to hearing what the Minister has to say and finding out how he will respond to a tricky situation.
Mr. Atkinson: I speak in support of my right hon. Friend the Member for Penrith and The Border (David Maclean). It was said earlier that everyone has a slightly different vision of what a common is. Some see a common as an urban common, while others would think of a large upland common. My right hon. Friend and I share an identical type of common: large upland commons covering tens of thousands of acres. The situation for such commons is different from that in other parts of the country.
I agreed with what my right hon. Friend said about the way in which officials have worked hard to try to solve difficult problems, given that every common in various parts of the country has a different culture. There is no doubt that our upland commons in the north have a culture different from others. The difference for those in the north is this business of value with severance, and that is crucial. In normal circumstances, there is a value for a farm with attached common rights, but the value often increases if common rights can be sold separately from the dominant farm. Sometimes the value of the dominant farm will be different. In some circumstances it may be greater now without the commons. In other instances, people may wish to acquire the rights of the common to increase their grazing rights. It is a complicated matter and one where there is monetary value. If we do not accept the amendments, we will be devaluing the assets of farmers who have bought common rights separately as a separate transaction. That is wrong. I do not want to end the sense of compromise that we have, but this is a difficult issue. I would give some support to the amendment.
Barry Gardiner: Government amendments Nos. 92 to 94 revisit the provision in paragraph 3 of schedule 1 about the permanent severance of rights of common. My starting point is that most grazing rights would never have been severable were it not for the unintended effect of registration under the Commons Registration Act 1965. Clause 9 reinstates the general prohibition on severance. Schedule 1 gives effect to some exceptions.
On Third Reading in another place, we responded to calls from Lord Inglewood and others to introduce a power for the national authority to enable permanent severance on a designated common by order. In moving an amendment, my noble friend Lord Bach said that the powers were “a reserve power only”. He added that that did not mean that we intended to use them, and said that there were no plans to do so. However, in Committee, the hon. Member for South-East Cambridgeshire (Mr. Paice) and the right hon. Member for Penrith and The Border (David Maclean), when they were agreeing with each other, sought to temper the requirement that the owner of a common must consent to any individual act of severance.
We accept the argument advanced in Committee that an owner might exercise a veto for the wrong reasons—for example, to secure a financial inducement—and the amendment enables us to provide in the order that consents must not be unreasonably withheld.
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