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Lord Rotherwick: The noble Lord is making the case for Natural England to buy those severance rights in order to help to ensure that there is no over-grazing. I think that there is an opinion now that in the future land will not be over-grazed, but that there is a very real chance there will be under-grazing, and that, in fact, there will be a requirement for stock to go on. If so, does the Minister see Natural England having to obtain stock in order to put these commons in good order because of under-grazing?

6.15 pm

Lord Bach: There are still examples of over-grazing, which is why Natural England, or English Nature as it now is, has intervened. Natural England does not use the rights itself, but could use them in the future if it wished to.

I need to answer the question asked earlier about whether there is a kind of preference, first for a commons association, and secondly for English Nature. I must be frank with the Committee: the government amendment enables commons associations or Natural England or, indeed, the owner—the noble Earl asked me about that—to acquire rights. There is no system of preference. The selling rights by severance are a matter of private contract, as they are bound to be. So, the answer is that there is no particular preference.

Earl Peel: Does the noble Lord agree with me that if Natural England and the owner have exactly the same objectives, it would be rather foolish for them to be bidding against each other for the same purpose?

Lord Bach: Natural England could lease back the rights to farmers if there was under-grazing. Its involvement is in order to protect the commons. That is its purpose.

Lord Tyler: I am grateful to the Minister. Will he indicate whether in the particular case of Dartmoor—as he knows, there is already a statutory commoners'
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council there—the circumstances he has just been describing will be any different? I think he will agree that Dartmoor's experience has informed the whole debate and the preparation for the Bill.

Lord Bach: The noble Lord speaks with great expertise on Dartmoor. I believe the answer to his question is no.

Baroness Miller of Chilthorne Domer: First, I must apologise to the Committee for having missed the first part of the debate, but I was attending a briefing on avian flu which Defra was kind enough to give.

Is Natural England's being able to buy the rights the only way the Government can exercise power over what happens in the case of over-grazing? My understanding from other powers that have been passed is that if it wanted, for example, to protect an SSSI it would have the powers to do something about it. Is it a good use of public money to let it spend money to buy rights instead of exercising powers it already has?

Lord Bach: I believe that English Nature, as it now is—it will become Natural England—has a number of different ways in which it can become involved in protecting commons. One way is with SSSIs, as the noble Baroness suggests. I do not think that she is suggesting that it should not, as one of the arrows in its bow, be able to purchase, if that is what is needed in order to protect the common.

Baroness Miller of Chilthorne Domer: For the record, that is what I was suggesting. I was suggesting that it is bad use of public money when the body already has the power. The Minister mentioned the case of SSSIs. The body already has the power to do something about the matter. It does not need to buy these rights in order to have the power to do something about a situation on SSSIs.

Lord Bach: My point is that in other cases the body may not have the power to do something in the same way that it can with SSSIs. The Bill merely gives it the power, as an exception to the rule, regarding severance if it needs it.

The Earl of Caithness: Would it not be fairer and more sensible to give the commons association or the owner the first option? In the event of the commons association or the owner not taking up the option, the government agency is allowed to come in. I can think of a huge number of examples—not, alas, in England so I shall not cite them; they are in Scotland—where immense problems have jeopardised the livelihoods of local farmers. When it comes to putting cash on the table the local farmer is no match for either Natural England or the Countryside Council for Wales. If somebody in some back room decides that the body
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wants to buy all the severance rights of commons, there is not a hope in whatever that a farmer will ever get a chance to buy them.

The Duke of Montrose: Surely Natural England is worried about the areas which are SSSIs. If they are not SSSIs, surely it is not a great worry to Natural England what their state is.

Lord Bach: I have heard the strength of feeling on this issue and I hope that it will be appropriate for me to take it away and consider in particular the proposal of the noble Earl for an order of preference. I do not for one moment say that I will come before the House on Report on that basis, but I would like the opportunity to go away and think about the issue a little more.

Lord Livsey of Talgarth: I want to point out to the Minister that in Wales there is a precursor situation in which the national park has bought about a third of the "lord of the manor" rights on the whole of the Brecon Beacons, from Caernarfon right across to Senni Bridge. That presents a conflict of interest which could well occur with the CCW or Natural England. There is some resentment among commons associations that this "big brother" approach is not helpful, given that their constitutions are democratic and they have the grazing rights. They fear that the grazing rights may be the next in line to be absorbed. There are very strong feelings about these matters.

Lord Bach: I have already gathered that there are strong feelings in the Committee. For that reason, I propose to take the matter away.

Lord Williams of Elvel: I am sorry not to let my noble friend off the hook, but the 1965 register is where I come from; that is, by names and not by tenement. The whole clause presupposes that the register will be by tenement and not by names. After discussion with officials, I have reached the conclusion that even if my name or others on the 1965 register remain, that will be approved on the new register. Is that correct? If it is, the whole question of severance on rights attaching to land—dominant tenement—falls down in the case of people who have rights registered in their own name.

Lord Bach: I am not in a position to answer my noble friend on that point. I understand that the rule against severance applies when a party who has rights of common resolves to get rid of them. The question is about to whom that person should be permitted to sell those rights of common. The argument has been that he should not be allowed to sell them to someone who lives 200 miles away and who has no interest at all in the common. That is the principle behind Clause 9, but to make it too solid a rule would be unfair. That is why we are all searching for the exceptions which should apply to that general principle. One of the issues we will examine on Report is whether there should be an order of preference in terms of those exceptions.

Earl Peel: I want to seek two points of clarification. My noble friend Lord Rotherwick is right that there is
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a real possibility that some of these commons may ultimately be under-grazed rather than over-grazed. If Natural England or the CCW acquired such rights, presumably it would be incumbent on them not to extinguish them but to hold them in perpetuity in case a time arose when they wished to exercise them to overcome a problem of under-grazing. My second point is that, if they acquire those rights, presumably that will enable them to become a member of a commons association. I can think of one or two commons in this country where, I know, they would not be very welcome.

Lord Bach: As always, I have listened very carefully to what the noble Earl has said and taken his points on board. Before there is too much consensus that Natural England should have nothing to do with the matter, I should point out that we think that the benefits to nature conservation outweigh the costs in many instances. I remind the Committee that no commoner need sell if he does not wish to do so.

In response to my noble friend Lord Williams of Elvel, I can say that most rights in the 1965 registers are shown as attached to land.

Lord Williams of Elvel: That is not the case in the registers that I have looked at.

Lord Bach: My noble friend has found an exception in this particular case.

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