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- “a reserve power
only ... That does not mean we intend to use them, and ... we
have no plans to do so”.—[Official Report,
18/1/06; col.
683.]
The amendment agreed on Third Reading included a provision requiring that any act of severance authorised under that amendment would require the consent of the owner of the common. That requirement was present to protect the interests of the common owner and to enable the owner to act in the best interests of the overall management of the common. But we accept the arguments that were put to us by James Paice MP in another place that an owner might exercise a veto for the wrong reasons; for example, to secure a financial inducement. Amendments Nos. 116 to 118 enable us to provide by order that consent must not be unreasonably withheld.
Amendment No. 115 goes further than that and gives the national authority discretion in whether to include a requirement for the owner’s consent in any particular order. This reflects our acceptance that severance of common rights in some areas, particularly parts of Cumbria, is not a recent innovation. Where, as is often the case in some parts, rights of common have always been quantified, the law has always recognised that those rights may be severed. If we were to make 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, but would be conferred by Amendment No. 115.
Moved, That the House do agree with the Commons in their Amendment No. 109.—(Lord Rooker.)
Lord Inglewood: My Lords, I hope that I may be allowed a few moments just to say a big thank you to the Minister, his predecessors and not least his officials, and to convey to them the appreciation of the Federation of Cumbria Commoners for having introduced in the other place a provision that permits but does not mandate transfer that I describe as “within the parish”.
17 July 2006 : Column 1023
Across England, the law of common land and the common law in its manorial aspect developed differently from place to place. In Cumbria the smaller owner-occupier farmer—known as a “statesman”—was well known for his independence and indeed his stubbornness, as some of those who may have been involved in this debate will appreciate. They separated their rights emphatically from those of the owner of the soil very early on. There are well documented 17th century examples of manorial courts fining the manorial lord. After all, it may have been the lord of the manor’s court, but the law that was being applied in it was the common law of England in its manorial manifestation. Equally, very early on, rights were quantified and became severable by agreement. In the 19th century, statutory provisions were introduced from time to time making this possible. Therefore, I believe that the Government were absolutely right not to introduce with this legislation a move back towards feudalism in the fells.
This provision runs with the grain of localism and subsidiarity. As the Minister has explained, while it is not currently the Government’s intention to utilise it, I predict that if the next Commons Bill is as long coming as this one is after its predecessor, it will be used quite a bit, but I do not suppose that any of us will be here to comment on it.
Lord Livsey of Talgarth: My Lords, I am sure that I speak for my noble friend Lord Tyler, who will be very pleased with Amendment No. 113, particularly as it relates to the situation on Dartmoor, about which he has made a number of telling points. We are very pleased that the Government have agreed with the gist of his argument.
We were concerned that the situation in Cumbria is very different from that in other parts of the United Kingdom. We were concerned that accepting what happens in Cumbria with regard to severance as a generality vis-Ã -vis other parts of the United Kingdom would cause considerable problems with severance. Now that subsidiarity is very much to the fore, as the noble Lord, Lord Inglewood, has said, it is clear that the situation in Cumbria can be accepted as a matter for Cumbria, and the situation in the rest of England and Wales can be treated slightly differently. We are very pleased that a clear statement was made at the beginning of the Bill that severance would be barred. We do not see that the exceptions made in these amendments will substantially alter the principles in the Bill. Therefore, we accept what is proposed.
Baroness Byford: My Lords, I will not repeat what my noble friend Lord Inglewood has said. I am grateful to the Minister and his team for responding to the concerns expressed by David Maclean, Jim Paice and others in another place. As noble Lords will realise, including “may” rather than “must” has overcome the problems, for which we are grateful.
Lord
Rooker: My Lords, I am most grateful for noble
Lords’ responses to the amendments. However, I know nothing
whatever about the Bill, having come late to Defra and the Bill. The
process seems very
17 July 2006 : Column 1024
On Question, Motion agreed to.
- “(4A) In a case where there is no
commons council established for the land over which a right of common
to which section 9 applies is exercisable, the appropriate national
authority may by order provide that a person with functions of
management conferred by any enactment in relation to that land is to be
regarded, for any or all purposes of this paragraph, as a commons
council established for the
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.
17 July 2006 : Column 1025
- 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.
- “(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.”
- “(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.”
- “(3) A commons registration
authority may only remove and register land under sub-paragraph (1)
acting on-
- 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.
17 July 2006 : Column 1026
- “(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.
- 126: Page 36, line 5,
leave out from “was” to end of line 7 and insert
“provisionally registered as common land under section 4 of the
1965 Act”
- 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.
- “(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 the land from its register of town or
village greens.”
- 130:
Page 36, line 32, leave out from “was” to end of line 34
and insert “provisionally registered as a town or village green
under section 4 of the 1965
Act”
17 July 2006 : Column 1027
Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 110 to 135.
Moved accordingly, and, on Question, Motion agreed to.
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