Mr.
Paice: I challenge the Minister on that matter. If he is
absolutely correct, fine, but am I right that he is suggesting that the
Bill is giving the national authority power to permit another
constitution that is not in accord with the standard constitution that
the House has
approved?
Jim
Knight: Each association will be set up by order. My
understanding is that, when each is set up and properly consulted on
through the process of establishment, if there is a variation away from
the standard that seems sensible for the local association, that will
be possible. If I am wrong, I will advise the hon. Gentleman. However,
I am assured that I am
not.
Mr.
Paice: For the purpose of clarity, is the Minister saying
that the order setting up the association will take precedence over the
order approving the standard
constitution?
Jim
Knight: Yes, that is set out under clause
29.
Mr.
Llwyd: Strictly speaking, the order would not then be
subject to the affirmative resolution procedure because the order in
its final form would be drafted by someone else and not by the
House.
Jim
Knight: The standard constitution would be subject to the
affirmative procedure so that, when those seeking to set up an
association from the bottom up are looking at how to start and at what
sort of rules would be wanted to govern the work of the association and
its procedure, they would see that standard rules have been agreed
actively by both Houses through the affirmative procedure. That would
be helpful in streamlining and fast tracking the approach while still
retaining the flexibility that ultimately we want to be able to offer.
As has been said, each common and its situation is
different.
Mr.
Llwyd: The Minister has been generous all day in giving
way. However, I do not follow his argument. I had a quick look at the
standard orders. There is nothing untoward in them. Let us suppose that
there is a huge common with lots of sporting and recreational rights,
owners, grazing and even fishing rights. To bring in the democratic
element and to accommodate all those interests, surely the 10 to 12
would have to be doubled. If the standard constitution that had been
passed by order under the affirmative resolution procedure is then
effectively doubled in size outside, would that not seem a little
strange?
Jim
Knight: I do not regard that as strange because the
intention of a standard constitution is to minimise the repeated need
for parliamentary scrutiny of many standard forms. There is still the
ability to vary away from those standard forms, which will be subject
to scrutiny once the national authority brings it forward, but each
time an association is set up, we do not need
to go over and over again those matters that are lifted straight from
the standard set of rules that have been agreed under the affirmative
procedure. I hope that that explanation is
helpful.
Mr.
Paice: I apologise to the Minister for intervening again
but, as the hon. Member for Meirionnydd Nant Conwy said, he has been
generous. I want to be clear about the propriety of such matters. As
the Minister said, the standard constitution will be approved by
affirmative procedure. As I understand clauses 26 and 27, the order
establishing each statutory body will not go through under the
affirmative procedure. I am no expert in House procedure, but I find it
surprising that a ministerial order can take precedence over the
affirmative procedure. Surely, at least the order setting up an
association should be subject to the affirmative
procedure.
Jim
Knight: It would occupy a considerable amount of
parliamentary time if every order were subject to the affirmative
procedure. Each order setting up an individual association supplements
what has been agreed, and by going through that process, we are trying
to save time and make things easier for people. The Committee may want
to reflect on that. If it has any further questions for me, I shall, as
ever, be willing to deal with them.
The hon. Member for South-East
Cambridgeshire asked about large associations and whether there will be
any form of executive group. Commons associations could be set up over
as large, as many or as few commons as the local legal interests
support. We should expect many associations to cover more than one
common, and in such cases, the number of representatives would be
tailored to suit the size and type of commoners. The Dartmoor commoners
council has jurisdiction over 30 commons, for example. A large
association might include a governing body with smaller committees, but
crucially it would still be just one association. There is flexibility
in the legislation. I think that I have dealt with amendment No. 101,
and I hope that I have given the hon. Gentleman sufficient reason to
withdraw it. My hon.
Friend the Member for Stroud moved amendment No. 73. This amendment
would add holding meetings in public to the illustrative list. The list
refers in subsection (2)(c) to the proceedings of an association. Terms
about the proceedings would necessarily include terms about the holding
of meetings in public, so the national authority will already have the
power to make that sort of provision in an establishment order or in
the standard constitution.
As I said in response to my
hon. Friend the Member for Sherwood, we envisage that commons
association meetings will be held in public. The draft standard
constitution that the Committee will see shortly provides that meetings
of an association and any committee of an association—or
committee of a committee, potentially—will be open to the
public. However, that is subject to the proviso that an
association’s establishment order can prescribe circumstances in
which the public may be excluded.
Amendment No. 37 and new clause
3 look at the representation of local interests on commons
associations. Amendment No. 37 would amend the illustrative list of
terms that may be contained in the standard constitution or an
establishment order. It would replace the reference to membership with
a more specific reference that seems intended to require that at least
half the members of an association should be elected, that the order
should specify the local community from which members are to be drawn,
and the role of representatives of town and parish councils. Similarly,
new clause 3 would require membership of a commons association to
reflect local interest.
The amendment and the new
clause would require at least half the members of an association to be
elected. Clause 30(3)(a) provides that the standard constitution or an
establishment order for an association may include terms relating to
the appointment of members, and it clarifies that
“appointment” includes appointment by election. That is
because if the number of individuals with a particular interest were
small—for example, if only one or two landowners were appointing
a representative—or if there were no competition for a post, an
election could not take place.
The Bill contemplates that
members might be appointed through an agreed procedure that does not
necessarily involve a vote. I stress that elections will be used when
there are sufficient numbers of persons to warrant such a process.
Paragraph (a) of amendment No. 37 would prevent the use of the most
appropriate method of appointing members to the association, and I hope
that it will therefore not be
pressed. New clause 3
would require at least half the membership to be drawn from the local
area and would also broaden the representation on commons associations
to include parish and town councils. Our objective for commons
associations has always been to allow landowners and those with common
rights to develop more effective management practices on commons, and
associations will therefore be set up to manage rights of common,
vegetation and agricultural activities. They are not being established
to manage the land for the wider public benefit, or to deal with all
the activities that occur on commons, nor will they be given such
powers. Membership of
commons associations will therefore normally be limited to those who
have a legal interest in the common: namely, commoners, landowners and
those holding other rights including sporting rights—we
certainly regard sporting rights as being a type of legal interest over
commons, and it is right that associations are representative of those
who are directly affected by their
decisions.
Mr.
Drew: What about householders? A number of them are
entirely dependent on a common, largely because of the need for access,
which is the easement issue on which the Minister became expert through
the Natural Environment and Rural Communities Bill. How do they get
representation, and when there is a management arrangement, usually
through an organisation such as the National Trust, how is that
reflected in the way that commons operate? I accept that we are largely
talking about agriculture and in my question I am not, but not all
commons are principally
about agriculture; they have much more importance in providing access to
the general public and use for the other things that the Minister has
mentioned.
Jim
Knight: The short answer is that if householders, or the
National Trust, or Natural England or the Countryside Council for Wales
have a legal interest, they would have representation. Obviously,
associations can co-opt members, and there can be flexibility of set-up
so that, if there were a reason to vary membership slightly for reasons
on the ground, we might do that. The core thing that the Committee must
understand, however, is that those who have a legal interest must have
proper representation. There is nothing in the Bill that authorises
interference with any easement unless the beneficiary of the easement
consents. Broadening
the range of interests represented on an association would also make
commoners far less likely to form associations, thus making it more
difficult to achieve our objective of effective common land
agricultural management. Although we do not wish to impose a
requirement for local involvement, the Bill provides sufficient
flexibility for other interested persons or bodies, such as parish or
town councils, to be involved in the association if there is
substantial support for that approach. That may be relevant on a
non-agricultural common, where membership may be made up of commoners,
the landowner and other interested parties such as the local authority,
the wildlife trust and local
inhabitants. The
wider public interest, such as public access and nature conservation,
will be represented by Natural England’s oversight of common
land, and in Wales by the Countryside Council for Wales. As was
discussed on Second Reading, Natural England would not necessarily be a
member of the association unless it had a legal interest in the land or
was co-opted by the
members. We shall
establish a national stakeholder group to advise on implementation of
the Bill, which will provide an opportunity for involvement of wider
interests.
Mr.
Drew: What happens if there is a dispute about the way in
which the association is set up or runs? Is that where Natural England
could be lobbied or could arbitrate? A dispute between agricultural and
public use is quite possible; that is why some of us were keen to have
some local representation, in terms of ensuring legitimacy, for those
people who clearly have a vested interest in making sure that those
commons exist in
future. 6.45
pm
Jim
Knight: Obviously, we hope that, in establishing the
association, we will manage to get the balance right, in terms of
representation and accountability through election and so on. However,
if that fails and there is a dispute, the national authority has the
power to arbitrate. Under a later clause, associations can be wound up
by the national authority following consultation. That ultimately is
the sanction. Certainly, we would hope that Natural England would
report to the national authority if it thought that there was a
problem with the association not fulfilling its functions properly. I
hope that that satisfies my hon.
Friend. On amendment
No. 65, we certainly expect that the majority of associations will be
made up of common rights holders, landowners, tenants and those with
sporting rights. Those people are likely to be the majority of members
on an agriculturally active common and, in making the establishment
order, the national authority will have particular regard to their
views, but we do not want to limit an association to that because of
the situation on non-agricultural commons. As my hon. Friend the
Minister for Climate Change and the Environment said on Second Reading,
the Dartmoor commoners council has a veterinary officer, for example,
who advises on animal welfare.
Finally, turning to amendment
No. 51, which would enable the standard constitution or an
establishment order to specify the proportion of members of an
association who must own rights over that common, we have avoided
specific requirements about membership in the primary legislation in
order to allow local interests to have a larger say at the
establishment order stage about how different interests in a common
should be represented. It is such flexibility that we are concerned
with. I hope that the hon. Member for Brecon and Radnorshire accepts
that and will withdraw his
amendment.
Mr.
Williams: On a point of order, Miss Begg. I wonder whether
you could say whether there will be a stand part debate on this
clause.
The
Chairman: It is very much up to the Committee to decide
whether to continue debate. There has been a long debate on these
amendments.
Mr.
Williams: Thank you, Miss Begg. I am sure that a number of
us will take great comfort from the fact that the Minister put on
record that, in setting up the statutory bodies to represent commons,
the people with a legal right in respect of the commons should have
their rightful place on those bodies. We can take some comfort from
that. He suggested the people whom he had in mind—those who
exercise rights, the landowner, and sporting tenants. That is of great
comfort to us and to people who use
commons. How the
bodies are to be made up is important, because they will have
considerable powers; they will be entirely different from the voluntary
associations that will need the agreement of all commoners before they
can enter into agreements on environmental schemes. Clause 33, which we
will debate shortly,
says: “A
commons association does not need the consent of a person who has a
right of common over the land for which it is established in order to
do anything on the
land”. It
adds: “A
commons association does not need the consent of any other person with
an interest in the land for which it is established in order to do
anything on the land where what is proposed to be done could be done
without that person’s consent by any person who has a right of
common over the
land.” So those bodies
really will have a new power that has not been exercised by voluntary
associations in any way. That is why we are concerned that people who
manage and use commons should have confidence in
the associations that are to be set up, and why we have taken some time
to debate the amendments. Certainly, the Minister’s statement on
the matter is important, and we shall reflect on it, although we might
return to the issue on Report. In light of his comments, I beg to ask
leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Question
proposed, That the clause stand part of the
Bill.
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