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Amendment, by leave, withdrawn.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, 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. 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) to 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.
I move on to amendment No. 115. This has been an extremely good-natured debate. I trust that I will be forgiven if I savour this moment and this amendment and what is going on over on the Opposition Benches. As of this morning, I have had two separate speeches ready for the amendment: one to accept it and one to reject it. I left Opposition Members to struggle out the issue between themselves, to see who could vie most for my attention.
The amendment tabled by the right hon. Member for Penrith and The Border would go rather further than the Government amendment. It would give the national authority discretion about whether to include a requirement for the owner’s consent in any particular order. I have listened with care to the arguments advanced by the right hon. Gentleman. He represents the interests of his constituents with great tenacity. He has written to me twice on these matters. The way in which he has presented his case, both in correspondence and orally today, does him great credit.
The right hon. Gentleman has made the trenchant point that severance of common rights in the hills of Cumbria is not a recent innovation. As is often the case in those parts, the rights have always been qualified. The law has always recognised that those rights may be severed. Were we to contemplate an order to permit continued severance in such areas, we would certainly want to have a discretion not to require the consent of the owner. That discretion is not available to us as the Bill stands.
We remain of the view that there should be a general prohibition on severance. Indeed, the right hon. Gentleman has accepted that we are talking of exceptional circumstances. Should we be minded to make an order under paragraph (3) permitting severance in any locality, we should have a power to impose a condition requiring the consent of the owner to any particular act of severance. That will ensure that severance does not interfere with the proper management of common where the owner continues to take an active interest.
We believe that the Government’s amendments to paragraph (3) remain sensible and confer greater flexibility, but I am inclined to agree to the amendment of the right hon. Member for Penrith and The Border.
Mr. Paice: The Minister is taking a constructive approach to these matters. I am sorry that we were not able to produce a clear answer to his confusion. It is unusual that a Minister comes to the House without a clear line. I think that he was coming to that when I rudely intervened on him. I look forward to what he has to say. Suffice it to say, whatever the conclusion of the Government and another place, that we all accept that there is an important role for the landowner, but it is right that there should be a power to ensure that it is not an absolute veto. There is not a great deal to be achieved either way.
Barry Gardiner: I am grateful to the hon. Gentleman, both for those remarks and for his note.
I commend the
right hon. Member for Penrith and The Border (David Maclean) on his
legal skills. His amendment is of such a high standard that I am happy
to accept it in its present form. If he decides not withdraw it, we
would be pleased to add it to the Bill at
the final hour. It is fitting, given that we have been considering
arrangements for common lands that, in many cases, have been in
existence for almost 1,000 years, that it should be a Labour Government
who should ensure that the fight against feudalism and the striving for
a classless society continue. I am delighted to accept the right hon.
Gentleman’s amendment, and I trust that he will not withdraw
it.
David Maclean: I am grateful to the Minister, both for his wise words, and for having the wisdom to make the right speech this afternoon. Naturally, I shall not withdraw the amendment, and I hope that we do not vote on it, as that is not necessary. I congratulate the Minister, at the close of our debate, on accepting the amendment. It is a long time since I have had an amendment accepted in the House, so I am slightly out of practice. I am grateful to the Minister for his kind words, but he should offer them not to me but to the Cumbrian Commoners Association, which is skilled and knowledgeable, because it has been dealing with commons for hundreds of years, and understands them. I am grateful that the Minister and his officials have listened to our point of view, and I assure him that we will not need to deal with the matter in the House for a considerable period. He has some flexibility available to him, but it he will be required to exercise his judgment only on rare occasions, and that is the way it should be.
Amendments made: No. 92, in page 36, line 9, after ‘include' insert ‘(a)'.
No. 93, in page 36, line 11, leave out ‘consent obtained' and insert—
‘(b) provision as to the circumstances in which consent may be regarded as having been obtained'.
No. 94, in page 36, line 11, at end insert—
‘( ) Provision referred to in sub-paragraph (5)(b) may include—
(a) provision for consent to be regarded as having been obtained if it is withheld unreasonably;
(b) provision for the circumstances in which consent is to be regarded as withheld unreasonably;
(c) provision for the resolution of disputes.'.-- [Mr. Michael Foster.]
Amendments made: No. 95, in page 36, line 33, at end insert—
‘Non-registration of common land
1A (1) If a commons registration authority is satisfied that any land not registered as common land or as a town or village green is land to which this paragraph applies, the authority shall, subject to this paragraph, register the land as common land in its register of common land.
(2) This paragraph applies to any land which—
(a) was not at
any time finally registered as common land
or as a town or village green under the 1965
Act;
(b) is land which is—
(i) regulated by an Act made under the Commons Act 1876 (c.56) confirming a provisional order of the Inclosure Commissioners;
(ii) subject to a scheme under the Metropolitan Commons Act 1866 (c.122) or the Commons Act 1899 (c.30);
(iii) regulated as common land under a local or personal Act; or
(iv) otherwise recognised or designated as common land by or under an enactment;
(c) is land to which this Part applies; and
(d) satisfies such other conditions as regulations may specify.
(3) A commons registration authority may only register land under sub-paragraph (1) acting on—
(a) the application of any person made before such date as regulations may specify; or
(b) a proposal made and published by the authority before such date as regulations may specify.'.
Non-registration of town or village green
1B (1) If a commons registration authority is satisfied that any land not registered as a town or village green or as common land is land to which this paragraph applies, the authority shall, subject to this paragraph, register the land as a town or village green in its register of town or village greens.
(2) This paragraph applies to any land which—
(a) on 31 July 1970 was land allotted by or under any Act for the exercise or recreation of the inhabitants of any locality;
(b) was not at any time finally registered as a town or village green or as common land under the 1965 Act;
(c) continues to be land allotted as specified in sub-paragraph (a);
(d) is land to which this Part applies; and
(e) satisfies such other conditions as regulations may specify.
(3) A commons registration authority may only register land under sub-paragraph (1) acting on—
(a) the application of any person made before such date as regulations may specify; or
(b) a proposal made and published by the authority before such date as regulations may specify.'.
No. 96, in page 36, line 35, leave out sub-paragraph (1) and insert—
‘(1) If a commons registration authority is satisfied that any land not registered as common land or as a town or village green is land to which this paragraph applies, the authority shall, subject to this paragraph, register the land as common land in its register of common land.'.
No. 97, in page 37, line 30, leave out sub-paragraph (6) and insert—
‘(6) A commons registration authority may only register land under sub-paragraph (1) acting on—
(a) the application of any person made before such date as regulations may specify; or
(b) a proposal made and published by the authority before such date as regulations may specify.'.
No. 98, in page 37, line 35, leave out sub-paragraph (1) and insert—
‘(1) If a commons registration authority is satisfied that any land registered as common land is land to which this paragraph applies, the authority shall, subject to this paragraph, remove the land from its register of common land and register it in its register of town or village greens.'.
No. 99, in page 38, line 1, leave out sub-paragraph (3) and insert—
‘(3) A commons registration authority may only remove and register land under sub-paragraph (1) acting on—
(a) the application of any person made before such date as regulations may specify; or
(b) a proposal made and published by the authority before such date as regulations may specify.'.
No. 100, in page 38, line 4, at end insert—
‘ Buildings registered as common land
3A (1) If a commons registration authority is satisfied that any land registered as common land is land to which this paragraph applies, the authority shall, subject to this paragraph, remove that land from its register of common land.
(2) This paragraph applies to land where—
(a) the land was provisionally registered as common land under section 4 of the 1965 Act;
(b) on the date of the provisional registration the land was covered by a building or was within the curtilage of a building;
(c) the provisional registration became final; and
(d) since the date of the provisional registration the land has at all times been, and still is, covered by a building or within the curtilage of a building.
(3) A commons registration authority may only remove land under sub-paragraph (1) acting on—
(a) the application of any person made before such date as regulations may specify; or
(b) a proposal made and published by the authority before such date as regulations may specify.'.
No. 101, in page 38, line 6, leave out sub-paragraph (1) and insert—
‘(1) If a commons registration authority is satisfied that any land registered as common land is land to which this paragraph applies, the authority shall, subject to this paragraph, remove the land from its register of common land.'.
No. 102, in page 38, line 13, leave out from ‘was' to end of line 15 and insert
‘provisionally registered as common land under section 4 of the 1965 Act'.
No. 103, in page 38, line 28, leave out sub-paragraph (3) and insert—
‘(3) A commons registration authority may only remove land under sub-paragraph (1) acting on—
(a) the application of any person made before such date as regulations may specify; or
(b) a proposal made and published by the authority before such date as regulations may specify.'.
No. 104, in page 38, line 31, at end insert—
‘ Buildings registered as town or village green
4A (1) If a commons registration authority is satisfied that any land registered as a town or village green is land to which this paragraph applies, the authority shall, subject to this paragraph, remove that land from its register of town or village greens.
(2) This paragraph applies to land where—
(a) the land was provisionally registered as a town or village green under section 4 of the 1965 Act;
(b) on the date of the provisional registration the land was covered by a building or was within the curtilage of a building;
(c) the provisional registration became final; and
(d) since the date of the provisional registration the land has at all times been, and still is, covered by a building or within the curtilage of a building.
(3) A commons registration authority may only remove land under sub-paragraph (1) acting on—
(a) the application of any person made before such date as regulations may specify; or
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