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Grand Committee

Tuesday, 23 March 2010.

3.30 pm

Arrangement of Business

Announcement

The Deputy Chairman of Committees (Baroness Fookes): My Lords, before the Minister moves that the first statutory instrument be considered, I remind noble Lords that in the case of each statutory instrument the Motion before the Committee will be that the Committee do consider the statutory instrument in question. I should perhaps make it clear that the Motions to approve the statutory instruments will be moved in the Chamber in the usual way. I also remind the Committee that if there is a Division in the Chamber I shall adjourn this Committee for 10 minutes.

Commons Councils (Standard Constitution) (England) Regulations 2010

Copy of the Regulations
Copy of the Report

Considered in Grand Committee

3.31 pm

Moved By Lord Davies of Oldham

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Davies of Oldham): My Lords, these regulations are an essential step towards the establishment of commons councils in England, with statutory powers to manage common land. Commons councils will bring together the interests in a common to exercise management control.

The schedule to the regulations sets out the standard constitution which will apply to all commons councils. It addresses such matters as the appointment of council members, the proceedings of a council and the preparation of accounts. Each commons council will be created by its own establishment order made by the Secretary of State, which will set out additional or alternative provisions tailored to its particular requirements. Defra has published two model establishment orders to show how they might supplement the provision in the standard constitution-for example, by designating the number of council members and who will be entitled to elect them. No two commons are the same and this approach will ensure that each council operates under a single core framework but is responsive to local requirements.

A commons council can only be established if the Secretary of State is satisfied that it has substantial support, having particular regard to representations from commoners and others with a legal interest in the common. That is crucial to our approach: the Government

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cannot impose commons councils on unwilling commoners but can only respond to a call to set one up. The great advantage of commons councils is that they will be able to manage their own affairs by majority voting, hence relieving the difficulty of reaching unanimity among the collective interests. Councils will be able to enter into environmental stewardship and make rules, similar to by-laws, to enforce adherence to good commoning practice and the terms of the agreement.

These regulations follow a consultation which began in September 2008. As a result, we have made a number of modifications, such as to confer greater flexibility for keeping "live registers" of commoners' rights. The next step will be to work towards the establishment of the pioneer councils. Natural England has entered into negotiation concerning the potential establishment of commons councils on Brendon Common, Bodmin Moor and in Cumbria, and has allocated resources for this purpose. We expect the first commons council to be set up late this year or in 2011.

The regulations are part of enabling a long-sought new approach to the management of common land by those who know it best-the commoners, landowners and other local interests. Common land represents about 3 per cent of the land area of England but is exceptionally valued for its contribution to nature conservation, hill farming, recreation, archaeology and culture. This new legislation will play a significant role in improving the management of such lands and I commend it to the Committee.

Lord Taylor of Holbeach: My Lords, I thank the Minister for introducing the regulations. The very slimline statutory instrument presents an interesting contrast with a highly substantial Explanatory Memorandum, but I suspect that that it is inevitable given the complexity of the issue. I understand the Government's strategy of trying to present a framework that can then be adapted to meet the individual circumstances of particular commons.

A lot of the complexity comes from the fact that commons are occupied in a number of different ways and usually have grazing rights, and the relationship between the commoner or grazier and landowner is often complex. That is particularly so in respect of stewardship schemes; I would be interested in the Minister's view on the way in which environmental stewardship schemes and commons work together. There are circumstances in which landowners have been obstructive on commoners getting involved in stewardship schemes. There have also been situations in which landowners have sought to retain the benefits of the stewardship schemes for themselves, in which case what benefit is there for the commoner?

Getting the balance right is difficult. I understand the concerns. The CLA has written to me, pointing out a number of issues on which it is concerned. It believes that there is a risk in setting up the commons councils, and that the rights of the commoners and landowners can become confused. There is an important distinction between what a commoner and a landowner can do on common land. While all parties will often run their businesses alongside each other in a holistic manner, the lack of understanding of commons law by statutory government agencies has often led to

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commoners being encouraged to adopt management schemes through agri-environment schemes that the landowner should in fact be involved in adopting or delegating as he thinks fit. That brings us back to the issue that I mentioned.

Therefore, it is imperative that landowners are properly represented on commons councils where the landowner is known. Indeed, the Minister will understand that in certain cases the landowners of commons are not identified as such. There should be no bar to setting up a commons council where that might be the case. There can be a considerable difference in the dynamics of a commons council where the commoners are local and active as opposed to distant and remote. Similar is the case for those with an active landowner-the landowner may be non-existent, as I said, or largely absentee. However, I accept the Government's general premise that the complexity should not prevent the creation of commons councils where they are desired and there is a general belief that they can improve the management of common land.

I would like to ask the Minister a few questions. Two things indicate the challenge of the statutory instrument: the time lag from 2006 to now in getting the regulations tabled, and the sheer thickness of the Explanatory Memorandum. I draw one point in particular to the Minister's attention, because it shows that the Explanatory Memorandum may have multiple sources and have been put together in a hurry. If he turned to page 28 he would see draft accounts, carefully notated-note 1, note 1b, note 2 and what have you-but there are no notes. I have looked through the Explanatory Memorandum and I find them not. I suspect this is indicative of the fact that several documents have been put together to provide an Explanatory Memorandum.

I will not labour that point but I have some direct questions for the Minister. On page 6-of the Explanatory Memorandum, rather than the regulations-paragraph 4.1 says:

"Statutory councils will be formed only where there is substantial local support".

How will this be judged? For example, will support or opposition from the National Farmers' Union, of which I am a member, or the CLA, of which I am not, outweigh that of tenant farmers? Also on page 6, paragraph 5.1 says that,

Does this mean that the Secretary of State will hold back on approvals if there is a great rush of requests, even if demand is considerable? Does it also mean that the Government, having passed the legislation, have a hidden agenda not to achieve the target? In other words, do the Government really want to play this softly, or are they prepared to respond to demand if local opinion produces a large number of applications?

Turning to page 7, I see that paragraphs 5.2 and 5.4 seem to suggest that the Government may be planning to support the creation of councils in certain areas. In other words, they already feel that a commons council might be useful for particular areas. If this is the case, what criteria have the Government set themselves in

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saying that these areas are ones which ought to be looked at? I move on to page 10 and paragraph 5.13, which says:

"Benefits have not been monetised due to a lack of available evidence ... it is expected that the principal benefits ... will be substantially greater than costs. Work has been commissioned ... This is expected to report in early 2010".

Do we have that report? Where is it? Has it shown the expected benefits or not? I hope that, in asking these questions, I am not probing the Minister too far. It is useful if we have explanations on the record.

Finally, what happens when a commons council runs out of steam? The motivation for setting them up is the enthusiasm and thrust of local people who want to see a commons council in operation. Have the Government a strategy for circumstances in which the people who have engaged in running a commons council find that they do not have the time or interest to support the momentum that originally led to it being set up?

Lord Greaves: My Lords, I too welcome these regulations and the ability to debate them this afternoon. I declare an interest as a vice-president of the Open Spaces Society and a member of the Access, Conservation and Environment Group of the British Mountaineering Council.

The noble Lord, Lord Taylor of Holbeach, has raised several relevant questions, with which I will try not to overlap too much. I welcome the volume of information that we have been provided with this afternoon. Sometimes we get regulations which the Explanatory Memorandum simply rewrites in slightly different-and sometimes not even slightly different-words. This Explanatory Memorandum, particularly the annexes to it, provides a great deal of useful help and information.

3.45 pm

We have in front of us today the Commons Councils (Standard Constitution) (England) Regulations, a very full impact assessment-which contains a large amount of interesting and useful information-and the rather wonderful draft model orders for commons. One model order is for the West Barsetshire Commons Council-I always think of it as Borsetshire rather than Barsetshire-of which we had a previous version more than three years ago when we debated the Commons Bill. Another model order is for the Barset National Commons Council. The model orders are no doubt closely modelled on the draft proposals coming forward for the three commons councils being considered at the moment, including for the Lake District, which I think we all welcome and look forward to seeing in operation.

My first general point overlaps with that of the noble Lord, Lord Taylor; that is, it seems a long time since we debated the Commons Bill as it went through this House. In fact, I think that it was before the new furniture came into the Moses Room.

Lord Taylor of Holbeach: It was before I came.

Lord Greaves: The noble Lord says that it was before he arrived on the scene. Some of us have fond memories of those debates, as always, but they seem rather a long time ago. We had hoped that Part 2

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might have been commenced before January this year. Nevertheless, it has now started and we can get to work. I ask as an aside-the Minister may want to write to me afterwards-how many parts of the Commons Act have not yet been commenced and when do the Government propose that they are? What orders and regulations do the Government expect to publish and bring before the House? Which of the orders and regulations set out in the Act are they not intending to act on?

The proposals put forward for membership of and elections to the councils are sensible. They are flexible in that they will allow each order for each commons council to reflect the circumstances of that common, which has to be right. I see that the Duke of Omnium is to be a member of the Barset National Park Commons Council; I would have thought that he might have been too busy doing all his opinion-polling at the moment, but never mind. The proposals are sensible, and the flexibility built into the system is okay, but it will require a lot of time and effort to adopt and adapt the model constitution to each proposal for a commons council. The noble Lord, Lord Taylor, asked what the capacity of Natural England is to deal with them. The impact assessment suggests that, over 20 years-which is quite a long time, even by House of Lords standards-10 umbrella commons councils might be set up. I presume that they will be the bigger councils for wider areas, including in some cases a lot of commons. Then there will be 29 smaller ones that might include just one common or perhaps two or three together. That is 39 commons councils over 20 years-an average of two a year, which, on the face of it, does not seem to be a huge burden on Natural England. If this proposal becomes very popular and more commons come forward spontaneously-as opposed to those which Natural England is trying to motivate people to set up, presumably because they are in SSSIs or important areas for conservation or landscape according to Natural England's criteria-will the organisation be able to cope or will there be a queue that is not met during this period? Thirty-nine over 20 years does not seem to be a very ambitious target, although perhaps it is not a target but an estimate of the number of councils that there will be.

That leads on to the question of where the applications or processes for setting up commons councils will come from. How many do the Government expect to be led top-down, whereby Natural England goes around the country trying to persuade people to set them up? Perhaps it already has a list of what it considers to be priority places. Is that what will happen? How far will it be able to react as spontaneous applications come in?

The next issue that I want to raise is relatively detailed and arises from the regulations in front of us today, and from the draft constitutions for Barsetshire or Borsetshire. If I read out paragraph 14(2) it will be fairly obvious what is meant:

"The public may, by resolution of the council or committee (as appropriate), be excluded"-

normally the public will be allowed into these meetings-



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Paragraph 15(2) goes on to say:

"A commons council may exclude from any such publicly available agenda and minutes any information ... in respect of which it has passed a resolution under paragraph 14(2)",

excluding the public. My reading of that is that, first, the argument is rather circular. It says that the public can be excluded because the business is confidential. However, I compare that with local government practice, where the nature of the confidentiality has to be clearly set out in a resolution. It may, for example, be due to a personnel issue, it may be about employees or it may be to do with a contract, a legal case or a number of criteria set out in the Local Government Acts which clearly have to be invoked. You cannot simply say, "You're going out because we don't want you to know what we're talking about". I do not understand why the wording from the Local Government Acts has not simply been lifted and put into these regulations. That wording is tried and tested, it works well, and I think that that would have been the sensible thing to do. People will think that we want something to be confidential simply because it is controversial and we do not want them to know what we are talking about.

Secondly, not having an item on the agenda for the meeting so that people do not even know what is being discussed is not local government practice. Under local government practice, the agenda for the meeting will be published and, if it is confidential, it will be in Part 2. The press and the public will be excluded but they will know that the item is going to be discussed. Equally, excluding an item from the minutes begins to make it sound like the meeting of a secret society. Even if the minutes themselves cannot include confidential details, it is possible to write minutes that refer to a confidential item without necessarily prejudicing its confidentiality. It seems to me that the wording in paragraphs 14(2) and 15(2) does not follow good local government practice and, potentially, if the people on the commons council wanted to run it that way it could lead to it being something of a secret society. I am sure that outcome is not intended, but quite often you have to set down rules and regulations clearly and not just rely on the good nature of the people carrying them out.

My next point is about the cost. I suppose that the Minister will say, "Suck it and see", but what appears to be being said in this documentation is that the initial setting-up costs will be to some extent subsidised by the Government or by Natural England. Can the Minister confirm whether that is the case? The setting-up costs set out here are not inconsiderable, particularly if you are asking ordinary commoners, some of whom may have quite a low-level use of the common, to pay them. On,

"Establishment costs per commoner (one-off)",

on option 3, which is the supported system that the Government are proposing, it is suggested that:

"For a smaller council, the cost per commoner would be £356. For an 'umbrella' council, the cost per commoner would be £294".

That might not be much money for the Duke of Omnium, or for some other large landowner who happens to own part of a common, but it is a reasonably

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large amount of money for somebody who is just grazing half a dozen sheep or something like that. On,

"Operating costs per commoner (per annum)",

it is suggested that "for a smaller council", it might be £263 per annum, while "for an 'umbrella'" is £105. It clearly says that the commons councils have to be self-financing, at least after a certain period.

My questions are: first, are the Government intending to subsidise those setting-up costs-at least for the first commons, to see how they go-and if so, how long will it take for that subsidy to fall away and for the commons to have to pay the whole costs? Secondly, have the Government or Natural England done any testing, perhaps in those three first areas, of whether commoners are prepared to pay that and whether it is therefore a viable proposition? Thirdly, what happens if a majority of commoners on a common are quite happy to pay that money but some of them refuse to pay? Will they be excluded from the commons council but still subject to the rules and regulations that it sets out? Exactly how will that work?

My final point is about the elections, not surprisingly. I think that it says, in the draft West Barsetshire order, that the election of those people who have to be elected from a group, perhaps from commoners or from other groups, will be,

Given that "ballot" is used, I am probing whether that involves making votes on pieces of paper or whether it can be a show of hands, or whatever. I think that is what is in the model orders.

I am not clear how the election at the first meeting is to take place. Will that be by the secret ballots organised by the returning officer who is appointed by the Secretary of State, will it be by a show of hands, or it is down to how the returning officer feels like doing it at any given time? I assume that if there is an election for more than one person, the commoners-if they have five or six people to elect, for example-will have that number of votes, and if there is a piece of paper that you would be able to vote for that number of people. It does not quite say that, but I am assuming that that is the case. Can the Minister please confirm that? Having asked those detailed questions, I simply reiterate our great welcome for seeing these regulations at last. We wish the enterprise great success.

4 pm

Baroness Byford: My Lords, I shall not repeat what my noble friend Lord Taylor of Holbeach said, but I shall pick up on one or two comments. Having taken the Bill through all those years ago-it seems like a long time ago-I do not think that certain issues have been finally cleared up in the regulations.

Any one person can call for a council to be set up. The Explanatory Memorandum says "substantial", but I think that when we had the debate the Minister said that it was a majority. I am not happy to see the word "substantial" if it should be "majority". Some commoners may be in favour of a council being set up and others may not be. I would be grateful for clarification on that.



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It has been said that Natural England has allocated resources for the first two proposed councils. Is that just for those two? We are all aware of the current crunch on funding. If funding is not available, will the proposed councils be put on hold for the time being or would it be up to the members who want to form that council to find alternative funding?

I should have declared that I am a member of the CLA and the NFU, but we do not have any common ground to declare.

Paragraph 8.2 refers to the widely differing views expressed in Defra's consultation on costs and benefits. I will be grateful if the Minister will enlarge on what the issues were. The noble Lord, Lord Greaves, raised the issue of what happens when people refuse to pay, which I had intended to ask. As in any society, there will be some people who refuse to pay. Do the others carry the extra burden? Are those who refuse to pay entitled to some of the benefits that that council will bring? An important benefit is the opening of the door to agri-environment schemes. It seems slightly wrong that if people are not prepared to pull their weight and take part in the full sense, they should benefit from other people being willing to do that.

Paragraph 9.2 of the Explanatory Memorandum refers to Natural England publishing guidance in April 2010. That is a very few days away. Is it available? It seems strange that we should be debating these regulations when follow-up information is to be made available to us after the event. It does not seem logical, but some aspects of the way we went about the Bill were not very logical.

Figures for the administrative burdens are given on page 3. They are based on 2005 prices. Have they been upgraded? If so, what difference does that make to the figures we are considering today?

Some agreements in force now are voluntary agreements among associations and seem to be working quite well. Will the Minister update us on how many there are and how many of them have indicated that they would like to become full councils? That would help.

The noble Lord also raised closure procedures, which I wish to raise. I suspect that some councils remain strong, but over time some may wilt on the vine. What review will there be of that? What would that council's position be?


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