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The Baroness claims that there are existing powers to handle the situation. It would be helpful if the Minister would spell out those powers.
Barry Gardiner: Amendment No. 122 would permit statutory powers given to commons councils to be delegated to voluntary associations of commoners. It would strengthen the role of voluntary associations of commoners where they might continue to exist on commons that come under the jurisdiction of a large commons council.
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
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
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 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.
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.]
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'.
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.]
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.]
Amendments made: No. 64, in page 20, line 12 [Clause 35], leave out ‘association' and insert ‘council'.
No. 65, in page 20, line 13 [Clause 35], leave out ‘association' and insert ‘council'.
No. 66, in page 20, line 19 [Clause 35], leave out ‘association' and insert ‘council'.
No. 67, in page 20, line 24 [Clause 35], leave out ‘association' and insert ‘council'.— [Mr. Watts.]
Amendment made: No. 68, in page 20, line 30 [Clause 36], leave out ‘association' and insert ‘council'.— [Mr. Watts.]
Amendments made: No. 69, in page 21, line 10 [Clause 37], leave out ‘association' and insert ‘council'.
No. 70, in page 21, line 12 [Clause 37], leave out ‘association' and insert ‘council'.
No. 71, in page 21, line 13 [Clause 37], leave out ‘association' and insert ‘council'.
No. 72, in page 21, line 15 [Clause 37], leave out ‘association' and insert ‘council'.
No. 73, in page 21, line 20 [Clause 37], leave out ‘association' and insert ‘council'.
No. 74, in page 21, line 22 [Clause 37], leave out ‘association' and insert ‘council'.
No. 75, in page 21, line 25 [Clause 37], leave out ‘association' and insert ‘council'.— [Mr. Watts.]
Clause 38
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 amendments:
Government amendments Nos. 76 to 80
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 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
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.
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.
3.45 pm
Another conflict of interest is dealt with by my amendment No. 121. Members will be familiar with the issue, which has run throughout the course of the Bill. When the Bill was first published, 28 June 2005 was not mentioned—the date was inserted in the other place in Grand Committee. The purpose of this part of the Bill is to give people the right to argue that unlawful works should be removed. That is important in the context of the Countryside and Rights of Way Act 2000, which has been mentioned today.
One of the Government’s achievements has been the gift to working people of the right to roam freely over open country. All over the country, however, there is unlawful fencing. As I understand the present position, people can make an application for unlawful works and fencing erected after 28 June 2005 to be removed. I know from my direct experience, however, that there is fencing all over the country that precedes that date. For the life of me, although I know why the date of 28 June 2005 has been inserted, I do not understand the principle behind it.
It is important that the Government are clear about their intent. It has taken landmark legislation to allow people to walk freely in the countryside. That access is being restricted by unlawful works. It cannot be right that people such as me can apply for those unlawful works, which prevent access to parts of the country, to come down if they were erected after 28 June 2005, but not if they were erected prior to that. The Bill has been improved, and its balance is generally right. On that aspect, however, the Government have got it wrong—badly wrong.
David Maclean: I support my hon. Friend’s amendment No. 114.
In relation to
Warcop, before I get too far out of order, Mr. Deputy Speaker, may I
pay tribute to the wonderful job the Ministry of Defence does in
managing that range for wildlife purposes? When I hear people whinge
about the MOD owning land and
so on, I know that the best places for wildlife protection in my
constituency are on the live firing ranges at Warcop, with tanks
blasting off 120 mm shells a few yards away from where wildlife is
happily existing. I am happy to put that on record.
There is no great issue of principle between us on what we are seeking to achieve. I pay great tribute to the hon. Member for Sherwood (Paddy Tipping), and when we discussed the matter in Committee, I could not help but conclude that when he thinks of commons it is of the Wimbledon commons of this world and smaller village greens, where it would be absolutely atrocious for people to put up miles of barbed wire fencing. I, however, tend to think of 10,000 acres of moorland in Cumbria, where we sometimes need a wee bit of fencing.
Paddy Tipping: I think of those wild open spaces in the north Pennines. That is why I praise the Government for what they have done to allow people like me, from ordinary backgrounds, to experience it after a century of campaigning. I want that to continue; I do not want unlawful fencing to stand in its way.
David Maclean: I entirely agree. We do not want unlawful fencing. We do not want those wild open spaces to be cordoned off so that people cannot use them, we do not want miles of barbed wire so that people get tangled up in it—but we do not want people to fall down holes.
The simple examples that I shall give the Minister are not original; I gave them in Committee. But if the Bill were already law, by this time of the year the Minister would probably have 1,000 applications on his desk from Cumbria alone. Why? If I read the law correctly, at this time of year the bulk of those applications would be for permission to put up a few gates for a few days—a few weeks at most—to separate the sheep from the lambs. Sheep may now be out on the fells with the lambs. They may be nearer to the in-bye land. Farmers will not drive them all into the sheds to separate them; what they will do, at times, is take out a few gates, wooden or steel, put up a temporary pen, and then do some separation work. They will do it when they are doing the lug-tagging—putting the ear tags on. They will find a corner where two stone walls come together, and put up a temporary pen there. That happens every day of every week of the year in Cumbria, and no doubt in other sheep areas.
Those pens do not stay up permanently. The common is not fenced off. The pen provides a little sheep fank in which a farmer can work with his sheep for a day, or a couple of days. Then he will take the pen down and move on. That is happening all over Cumbria.
We have
thousands of miles of stone walls in Cumbria, all built in the 19th
century. Some of them look splendid, but most are teetering and a great
many have fallen down. Every day of the year a bit of stone wall falls
down on some Cumbrian common. If the commoners—the
farmers—do not have time to fix the wall immediately, they will
stick 10 ft of sheep netting or electric fencing around it. Over a
period of two or three weeks they will rebuild the wall, a bit at a
time, each day when they are checking the sheep. Those farmers are
law-abiding people, but there is no way
they are going to write to a national authority saying “A bit of
my wall has fallen down; may I please have permission to stick up 6 ft
of electric fencing?” That is just not going to happen, and
those people will be breaking the law.
A wet hole may suddenly appear on a common. Again, we are not talking about a village green; we are talking about tens of thousands of acres of moorland and rough fell—some of the wildest, roughest land in the country. There are little bogs and hollows. Sheep fall in, so a farmer will try to fence off a circle around the hole, perhaps 10 or 20 ft in diameter. Given the right-to-roam provisions—which we all welcome—what is the legal obligation? If a farmer goes out one morning and finds a dead sheep in a little hole in a boggy bit of land, does he do nothing to fence it off? Some of the stone walls are very high, particularly when the banking beneath them has been undermined. If a farmer suddenly finds that a stone wall is about to fall down, does he do nothing about it? Or does he go to the farm office, eat his morning snack and start applying to the Minister for permission to fence off the bit of wall for a period? That ain’t going to happen.
Mr. Llwyd: The right hon. Gentleman is presenting a powerful argument. If a stone wall is known to be dangerous and a passer-by is injured, the farmer’s insurance policy will be worthless if he has not taken steps to do something about it.
David Maclean: The hon. Gentleman is absolutely right. In the management of thousands of acres of common, hazards are posed daily to the farmer, to his animals and to walkers every day. Anyone who walks on the Cumbrian commons will find little pockets in which fencing has been put up around hazardous areas. That is the way in which the land is managed, and, with the best will in the world, those who manage it are not going to apply for notification from the Minister.
We do not want whole swathes of common to be fenced off. We do not want to hear the excuse “The whole common is boggy: we had better fence off 1,000 acres in case someone gets stuck in it.” Of course that will not wash. But we do need a de minimis requirement. We cannot invent the details—as Opposition Members, we do not have access to all the lawyers—but I think the Minister should draw up regulations that would permit fencing for human safety purposes, animal welfare purposes and conservation purposes.
If there is a fire on the heather, it will need reseeding, and a farmer will fence off a few hundred yards for the spring, until the grass grows in the summer. That keeps the sheep off the area and gives it a chance to recover. Those are all day-to-day management practices, and they will continue whatever we say here. I just do not want those simple everyday tasks to be a crime or illegal, because farmers will not apply for licences to do what has been done for hundreds of years.
We do not
want to drive a coach and horses through the Bill, and the amendment
would not do that. It tries to set a minimum standard, and would allow
small works for a short time for certain defined purposes. I am sorry
that the Government have not tabled an
amendment on this point, and I hope that there is scope in the Bill
somewhere for de minimis regulations to set a threshold so that farmers
can carry out such tasks without having to apply for permission or a
licence to do so. Otherwise, the Minister will be a very busy
man.
Mr. Atkinson: I echo the remarks made by my neighbour and right hon. Friend the Member for Penrith and The Border (David Maclean). Our constituencies are very similar in landscape and share a military training area. I can also vouch for how well Defence Estates manages the Otterburn training ranges. They are a first class example of good conservation.
The Minister may have an escape route, which he will need, because clause 38 is very prescriptive and could cause problems. Clause 40, however, will allow the introduction of regulations, and I hope that he will introduce regulations that will advise on this point. As my right hon. Friend has just said, the everyday activities of hill farmers would put them in breach of some of the restrictions in clause 38. As the hon. Member for Sherwood (Paddy Tipping) knows, the north Pennines are riddled with underground shafts, left by the lead mines. Indeed, one can still travel four or five miles underground in old tunnels, if one knows the way, that were carved in the rock by the lead miners. Sometimes the old shafts open up and are clearly a danger both to livestock and to people who have the right to roam in the area. It is reasonable for a farmer, therefore, to put up some fencing around it. Similarly, there is often bad weather at lambing time, so people put up temporary lambing sheds, either polytunnels, which are not very attractive, or old containers, which are even less attractive—that is farming in the hillsides. It is nonsense to suggest farmers would be in breach of this legislation if they were to do that.
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