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Page 13 refers to "moderate significance" with regard to significance and benefits. I was quite surprised to see that in the significance rating agri-environment schemes are listed only as moderate. One big thrust behind even considering this issue when the Bill came through was the ability of the commoners to be able to access agri-environment schemes, which they would certainly not have been able to before. It would have been the landlords who were able to do that. I am slightly puzzled why it was put down as only moderately important.

From the briefing from the CLA that I have had-and which I suspect that others have had-I raise two other things. There is obviously a difference in role between the commoner and the landowner. Sometimes the landowner is missing; I expressed my views on that

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earlier. I think that the councils and the proposals will deal with that well. But sometimes the commoner is involved only in the grazing of the cattle, or whatever else he is holding on the common, so his applying for agri-environment schemes may be looked at in a different way, if he is able to do it, whereas the landowner has to consider the long-term welfare of the environment for biodiversity and everything else, and has to balance that-particularly in moorland areas-with cover for game birds. There is a big issue around management of moors and game birds, and the burning of scrub, for example, which we dealt with when we discussed this in Committee. I have not managed to look in here and find clarification on the issues in which I was interested. Clearly, there could be differing views between the commoner and landowner. I am uncertain in my own mind as to how, even within the commons councils, those diverse issues will be overcome.

Having said that, I welcome this measure. I am sad that it has taken four years, but the benefit is that my noble friend Lord Taylor of Holbeach is now on the Front Bench. I sit proudly behind him, supporting his efforts on this Bill. We went into great detail on what was considered a fairly small Bill at the time, because there are real, practical issues. I am not too convinced, having waded through the Explanatory Notes and having had briefings from other organisations, that we have got it totally right. If we have not, would the Government's view be to push ahead, or would they have the common sense to delay the authority of this proposal until some of these details have been clarified?

Lord Davies of Oldham: My Lords, I am grateful to noble Lords who have contributed to this short but intensive debate. I am most grateful to the noble Lord, Lord Taylor, who gave me some indication of some of the trickier questions that he would ask. I feel slightly better equipped to respond to several of his than I might be to respond in full to those of the noble Lord, Lord Greaves, and the noble Baroness, Lady Byford. However, I shall do my best on these detailed issues.

First, I am grateful to the noble Lord, Lord Taylor, for recognising that the basic structure here is a framework. That is why the Explanatory Memorandum is extensive. The noble Lord is right that it has several component parts, but we seek to create a framework in which there can be a range of variations, not all of which we are necessarily able to foresee at this juncture. I hope to convince noble Lords that we have thought about most of the issues to which they have pointed, and which may lead to difficulty in future.

The model for the whole issue of commons, as the noble Lord, Lord Greaves, has noted, comes from Trollope in the 19th century. The noble Lord must forgive the thoughtfulness of my officials, who have followed the well established pattern that, whenever they refer to a fictitious county, it is always one of Trollope's. You cannot expect to lurch into the 21st century with one or two examples, which might catch one or two of us out-whereas we all feel totally secure, particularly in the upper House, with regard to Trollopian references. That is what we have on this occasion. The noble Lord went on to develop that in his illustrations. These illustrations are against a background in which

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we recognise that there are aspects of variation, which is why this structure has to be able to cope with the variations.

I emphasise, in response to the noble Lord, Lord Taylor, that the commons councils will certainly be able to apply for environmental stewardship agreements. The landowner will be expected to join in on consent to the agreement. That is one dimension that we expect to benefit from the structure that we are developing. As with all environmental stewardship agreements, it will be for the applicant-in this case the commons council-to determine how the payments will be distributed among those contributing to delivery of the agreement. Natural England has published guidance on the principles which should be considered in deciding how to allocate payments in relation to uplands ELS agreements on common land. This will be illustrative and instructive when that opportunity develops. We certainly want to see that aspect of it.

I reassure the noble Lord on the rights of landowners in this situation. As I sought to emphasise in my opening contribution, the Secretary of State cannot set up a commons council without consulting all local interests and confirming that there is substantial support for its establishment. He will pay particular attention to the representations of those with legal interests, such as landowners. They clearly have a stake of great particularity and importance in the issue. In all but exceptional circumstances, all key interests in the common, including those of landowners, will be represented on the council.

The concept of the commons council is a consensual one. I cannot emphasise that too much and I know noble Lords fully share that aspiration. We anticipate that disagreements will be few and far between. Certainly, there are no disagreements about the concept of its establishment. If there is substantial objection, the council cannot be formed. We expect all key interests to be accommodated. If no landowner can be traced for the common, or if no landowner is willing to be involved in the council, the expectation of the representation of the landowner with an interest in the common may not, in that case, be fulfilled. Owners will be bound by rules made by the council on, for example, the exercise of grazing rights, as will any other person on the common. However, landowners' rights cannot be ignored, since there is a requirement for a council to obtain the consent of the landowner before undertaking any activities on the land that would normally require the landowner's consent. I emphasise that we have taken that very important consideration into account.

I also emphasise that all the major interests in a common, including landowners, will have the opportunity to be represented on the council. The council needs to be tailored to the local circumstances. That is why we have a framework for the concept of a council. I am not so sure I can even call it a typical council. As the noble Lords, Lord Greaves and Lord Taylor, and-perhaps rather more sorrowfully-the noble Baroness, Lady Byford, said, progress on this will not be at speed. There should be great concern about the multiplicity of councils that come forward with a wide disparity of models. We have a framework and each council that is

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formed will be tested against that framework. There will be the understanding of variation and sufficient time to take that into account. Anxieties should not be entertained about who will form part of the council.

"Why certain areas?", I have been asked. Do the Government have a favoured piece of Barsetshire that they want to emphasise? No, we will support the creation of councils in some areas, particularly because discussions have already taken place. In my opening statement, I indicated the issue with regard to Brendon Common and Bodmin Moor, and potential issues in Cumbria. These discussions are reaching the stage where those are the likely early initiatives.

In terms of available funding, it is likely that any grant support for the establishment of councils will be limited to circumstances which directly address government priorities and which are of the greatest public benefit-for example, where a council achieves favourable outcomes on a site of special scientific interest. Noble Lords would expect the Government to be more enthusiastic about proposals that met our broad strategy on the development of land. Within that framework, as has been indicated, it is not as though we are anticipating being subject to a flood of proposals. We will be able to indicate where opportunities lie for the development of commons councils against a background of meeting broad objectives.

4.15 pm

I accept that there is currently limited research on the monetisation of the benefits of establishing commons councils. These councils have to be encouraged and developed. I accept the criticism-voiced first, I think, by the noble Lord, Lord Taylor-that there had been a somewhat long gap between Royal Assent of the Bill and the commencement of this legislation, and I was not at all surprised to hear the noble Baroness, Lady Byford, echo that point. It is not unusual for noble Lords who helped to bring the legislation on to the statute book to stamp with impatience when action is somewhat delayed. I remember a two and a half year delay over legislation with which I was concerned in the other place, and stamping my foot fairly vigorously about that.

I emphasise that extensive consultation with stakeholders has been taking place to develop a workable basis for implementing this legislation-in particular, the practical model orders and the guidance-and encouraging Natural England's work on shadow councils in order to establish the needs of prospective commons councils. A lot of this preparatory work will be enormously fruitful and, although the work has taken some time, it is right that there should have been a response to the obvious challenges, represented by some of the anxieties expressed this afternoon.

The noble Lord, Lord Taylor, was worried about the end game, which made me jump a little. I was thinking about the creative part of this legislation and the origins of the councils but he asked me what would happen when one of them folded up. It is open to the Secretary of State to revoke an order establishing a commons council under Section 37 of the Act if a council ceases to operate, but we would expect Natural England to work with a potentially failing council to

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try to put things right and avoid failure. I hope that the noble Lord, Lord Taylor, will forgive me if, with my usual optimism, I prefer to consider the prospects of success rather than to be too concerned at this stage with elements of failure. However, the noble Lord, Lord Greaves, is going to emphasise that Ministers should always be concerned with failure.

Lord Greaves: The opposite, my Lords. Of the councils that the Minister is promising may come into existence fairly soon, at least two-the Lake District and Bodmin Moor-have existing structures and there may be existing voluntary commons councils there. I remember my noble friend Lord Tyler waxing lyrical about his history of helping the commoners and landowners on Bodmin Moor to get things sorted out, and we had the noble Lord from the Lake District-

Baroness Byford: Was it the noble Lord, Lord Chorley?

Lord Greaves: No, it was the noble Lord, Lord Inglewood. I was remembering his nickname in my head and thought, "You can't possibly say that". He waxed lyrical about the Lake District, its commons and some of the land that he owns there, where people are already co-operating well. They are the easy ones, in a sense. Can the Minister tell us how many apart from the three are in an active queue, as it were, waiting to come forward in the next few years?

Lord Davies of Oldham: I am grateful to the noble Lord, Lord Greaves, for shifting us on to that constructive and optimistic perspective. I emphasise that Part 1 of the Commons Act 2006, which provides for updating the commons registers, has been implemented in England in seven pilot local authority areas. To ensure that we can learn fully all the lessons from the pilots, we have decided that the decision on how and when to go ahead with national commitments should await the completion of the pilot period in September 2010. Part 3 of the 2006 Act, which deals with consent for works on common lands, and Sections 16 and 17, which deal with exchanges of common land, were brought into force on 1 October 2007. Responsibility for casework consent was transferred to the Planning Inspectorate at the same time.

We have no plans at present to bring into force Section 50, which provides for updating schemes of regulation made under the Commons Act 1899, but we do not think there was any anxiety about the capacity of Natural England to cope with prospective take-up of commons councils. That answers the noble Lord's question. We do not expect a flood; he will have recognised that from the tentative figures. Those figures are an estimate of the rate, not a commitment or plan. Remember that we are dealing with a concept that requires the consent of all concerned and a consensus to emerge. It would be presumptuous in the extreme for the Government to lay down figures that have to be reached. If the noble Lord, Lord Greaves, did not assault me for the heavy hand of central government if I did that, I assure him that the noble Lord, Lord Taylor, would not miss that point; he would say that this was all about centralisation. That is not the concept behind this; it has to emerge from local consensual positions. That is the only thing that will work successfully.

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As I mentioned, Natural England has explored the potential of the two areas. If there were a surge in demand to establish councils, we would have regard to the probable benefits and costs of each in deciding what resources to allocate. In practice, it is unlikely that a candidate commons council would be encouraged to work up a detailed proposal without resources having been allocated to the project. The noble Lord, Lord Greaves, pressed me a little further on this. We expect resources from Natural England, but it is possible that resources would be available from Defra with regard to the establishment of the councils, against an obvious background that we will not run before we can walk. We do not expect a great deal of running to be necessary, because of the nature of the process by which the councils will be set up.

I emphasise to the noble Lord, Lord Greaves, that we will focus resources on commons where the councils are most likely to deliver our objectives with regard to biodiversity. That does not mean that councils could not be set up elsewhere and meet the criteria, only that priority councils will obviously have first call on resources. They will know the name of the game-that they will have a better chance of acceleration than others if they are able to establish gains in terms of the Government's broad objectives with regard to issues such as biodiversity. The noble Lord, Lord Greaves-and I think the noble Lord, Lord Taylor-hinted at that, but not with the force that he spoke about the concerns about costs. He knows-we have established-that the estimate of a small council's set-up costs is about £13,500. I am not minimising that, nor am I exaggerating the resources that might need to be established to take on a few more councils than we expect in the early days. Grant support is potentially available from Defra or Natural England. That support will follow government priorities for rural development. In that respect, the noble Lord's anxieties need not be taken too far, nor does he need to be concerned about process.

Lord Greaves: Will the Minister clarify that the setting-up costs of a commons council, if the Government and Natural England approve and support it, will be paid whole or in part from grants from Defra and/or Natural England? Would those grants pay for some of the running costs for the first year or two before the council got under way? Would the council then be on its own?

Lord Davies of Oldham: Those seeking to establish a commons council will know that it will be easier to get access to such support grants if they indicate that they will fulfil benefits consistent with the Government's overall strategy. Therefore, Defra and Natural England will make the resources available. After the start-up costs have been met, the principle is that a commons council will sustain itself. We will make resources available for start-up, but a council then will run itself. It will do so in a democratic fashion-I hope that the noble Lord, Lord Greaves, did not think for one moment that there would be any expectation other than that the first election of council members would be by ballot. A returning officer would be established, coming probably from the local authority.

Lord Greaves: Will it be a secret ballot?

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Lord Davies of Oldham: We would expect the ballot to set up the council to follow democratic norms. The noble Lord should not be unduly anxious about the council going into secret session-it will not do any of those things. It is not a local authority, with direct responsibility to a wide range of electors. I accept entirely the noble Lord's unexceptionable principles on how a local authority should act and why the rules should be clearly drawn when the council is engaged in confidential activity. There will not be much with a commons council which remotely approaches that, because it will not be a major employing authority with a disciplinary aspect and all those things which throw up unavoidable issues of confidentiality and require those rules. The commons council will after all be a small, consensual council of people working together. We are indicating only that, if someone has a direct financial interest in what is being discussed by the council, it is necessary that the interest be quantified in a certain way and that the individual concerned has rights. Therefore, I do not think that this is a great issue.

4.30 pm

The noble Baroness, Lady Byford, asked whether any person could call for a commons council to be set up. Anyone can ask the Secretary of State to set up a commons council but a request which comes from a person with a legal interest in the common, or a proper representative body of such a person, will carry greater weight than a request from anyone else. However, the Secretary of State cannot set up a council without first being confident that all interests have had the opportunity to express a view and that there is substantial support for it. Without substantial support it would not work. You could not set up a council of this kind without there being that degree of support.

Baroness Byford: In our discussions when we took the Bill through, we identified "substantial" as being "majority". I raised the issue because there is a difference between "substantial" and "majority".

Lord Davies of Oldham: The problem with "majority" is that you will have to identify with the greatest accuracy everyone who has a right to participate and then count the majority. Of course it will be a majority. By definition, you cannot have a consensual concept without there being a majority opinion. I am shying away from the idea that the council will be computed and set up on a 7:5 majority. It cannot be, because that would not look consensual enough. The concept is clearly one in which the Secretary of State must believe that the council will work consensually. In setting up the council, the idea that significant interests could be overwhelmed by the majority vote would destroy the very concept of the council and its work.

Baroness Byford: I did not say that it should be a 7:5 majority but that is where the reference is on the page; I meant paragraph 7.5 of the Explanatory Memorandum. Forgive me; I feel I have misguided the Minister. I am concerned about the difference between the words "substantial" and "majority", and I have laboured the point because, if that is what we agreed, it seems silly to back away from it. If I said "7.5" it was a reference, not a majority.

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Lord Davies of Oldham: My Lords, I am not being clear enough and I apologise to the noble Baroness. There is a difference between the council being set up as a consensual model and how it operates afterwards, which is what the noble Baroness may be describing. Clearly the council will be in awful trouble if it wins votes by 51 to 49 and works on that principle. Nevertheless, the noble Baroness is right: in certain circumstances it will be a majority decision. However, I think she and I would agree that if there were too many votes of that kind on a consensual council, the concept of the council would be in serious trouble.

There is an element of force behind what happens when someone refuses to pay. If a commoner refuses to pay a levy set by the council, it will be recovered as a civil debt and, until the debt is paid, the defaulter is excluded from being a member of the council, from voting for a member of the council and from participating in the business of the council. That is to be expected. After all, by definition, if they have withdrawn their financial support they have withdrawn their contribution and their right to participate. There is bound to be an element of compulsion in such circumstances, otherwise the concept of the council working and being able to make a levy would be a complete nonsense.

If any aspect of the standard constitution-this is another point about which the noble Baroness was exercised-as set out in the draft regulations is not appropriate to a particular commons council, different provision can be made in the order establishing that council and the special provision will take precedence. We are looking for flexibility. I know that the noble Baroness could be quite fertile in identifying areas where some special dimension needed to be taken into account and, as the noble Lord, Lord Greaves, emphasised, we are looking for an element of flexibility in those terms.

I am grateful to noble Lords for what I had anticipated would be a close examination of the nature of these negotiations. What I have also detected from the contributions is that we all want these commons councils to work, where they are appropriate and where there is a will to get them established. We have a framework that will make that possible, and I look forward to the progress that is made in establishing the commons councils.

Motion agreed.

Funding Code: Criteria and Procedures

Considered in Grand Committee

4.36 pm

Moved By Lord Tunnicliffe

Lord Tunnicliffe: My Lords, the funding code, which is created under Section 8 of the Access to Justice Act 1999, sets out the merits criteria for granting civil legal aid in different types of cases and the procedures for operating the civil legal aid scheme. Those cover,

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for example, application, refusal and appeal procedures. The funding code's criteria and procedures are being modified under Section 9 of the Access to Justice Act 1999. That section requires any changes to the code criteria, as here, to be approved by both Houses of Parliament before coming into effect. This is done by laying the whole funding code, as amended, before each House, rather than by laying amendments alone.

The funding code does not set out the remuneration arrangements for civil legal aid, which are set out in orders and contracts. Nor does it cover financial eligibility rules for civil legal aid, which are in regulations. The funding code instead covers the test that cases must meet, in the judgment of the Legal Services Commission, in order to merit civil legal aid funding. This merits test includes considering the likely costs of a case against the likely damages and how likely the case is to succeed. It also sets out considerations that apply to cases which are not primarily about money.

Generally, the intention is to model the approach that a reasonable, privately paying client would adopt with regards to litigation, taking into account the importance of the issues at stake, the likelihood of success and all the other circumstances. This helps to ensure a level playing field between those who can afford to litigate privately and those who do not have the financial resources to do so. It follows that public funding should not be provided if a case is insufficiently strong for a private client to risk his or her own money, and to bear the risk of having to pay the costs of the other side.

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