Clause36Consequentialprovision Mr.Drew: I beg to move amendment No. 77, inpage 20,line 20, after ‘authority',insert ‘after public advertisementand consideration of anyrepresentations'. TheChairman: With this it will be convenient to discussamendment No. 76, inclause 36, page 20, line 30, leave out paragraphs (c) and(d). Mr.Drew: Again, these are probing amendments. I wish toclarify the situation with regard to pre-existing schemes ofmanagement, where the Government, for whatever reason, have chosen totake action against a commons association, presumably because ofsomething it should have done or something it should not havedone. My amendmentNo. 77 seeks to ensure that the public have a right to appeal againstany action that would damage a pre-existing scheme of management oncommon land. That is a fall-back position in terms of possible actionthat could be taken against a commons association or committee, oragainst the Government, should they choose to take action because they were unhappyabout how a particular association or committee was carrying out itsduties. The twoprobing amendments sit together, and I want to hear theMinister’s comments on them. We should ensure that there is apublic interest in terms of the protection of pre-existing agreements,which could be changed by the nature of this legislation. We shouldalso be clear about what happens in a dispute over a pre-existingagreement and a subsequent agreement, and what the Government’srelationship would be in respect of such adispute. JimKnight: I am grateful to my hon. Friend for allowing me toclarify matters that might have been missed. As ever, some of them arecomplicated. AmendmentNo. 77 is unnecessary, because clause 27 already requires the nationalauthority to do what it would require. Any change or revocation ofexisting legislation affecting commons management—such as ascheme of management established under the Commons Act 1899—willbe included in the establishment order for a new commons association.In making an establishment order, the national authority is required toconsult and consider representations on the draft order. That willinclude some form of advertising of the draft order to raise awarenessamong local and other interests in the proposed order. There is alsothe scope to hold a local inquiry, if necessary. I hope that satisfiesmy hon. Friend in respect of amendment No.77. Amendment No. 76would prevent the national authority from modifying any scheme ofmanagement established under the 1899 Act or the CommonsAct1876, where it might come into conflict with the functions given to acommons association. We expect the majority of commons associations tobe formed on agriculturally active upland commons. Therearerarely schemes of management establishedunder19th century legislation on these commons, but it issensible to have a power that can be used to resolve any conflictbetween functions that may be given to a commons association and anyscheme that does exist. For example, there are a handful ofagriculturally active commons that are subject to orders of regulationmade under the 1876 Act. While we have no reason to believe that boardsof conservators established under such orders are not workingeffectively, clause 36 is in place should the interests in the commondecide that they want to “upgrade” to more modernpowers. In any event,in cases where a scheme of management might be varied or revoked thereis a saving for-public-access arrangement; my hon. Friend isparticularly concerned about that. Any form of public accessestablished under a scheme of management is protected by clause 36(3).That prevents the national authority from abolishing or restricting anyform of public access when using this power. Further protection of thepublic interest is provided through the requirement in clause 27 forsubstantial support for each order that establishes a commonsassociation. The variation or revocation of any scheme of managementunder these 19th century Acts would be included within an individualestablishment order and is subject to the same test of substantial support. I hope thatsatisfies my hon.Friend. Mr.Drew: I am more than satisfied, but I wish to add onequalification. Will the Government spell out exactly how the publicinquiry apparatus would come into play? As long as that request hasbeen heard, I beg to ask leave to withdraw theamendment. Amendment,by leave,withdrawn. Mr.Paice: I beg to move amendment No. 67, in clause 36, page20, line 41, at endadd— ‘(4) Section 36(2)(e)shall not be taken to apply to the National Trust Acts1907-1971'. TheChairman: With this it will be convenient to discussamendment No. 68, in clause 44, page 25,line 30, at endadd— ‘(6) Section 44(2)shall not be taken to apply to the National Trust Acts1907-1971'. Mr.Paice: These amendments are self-explanatory, and it willnot come as a surprise to learn that they have originated from theNational Trust, to which I referred in my speech on SecondReading. The NationalTrust is renowned; everybody knows about it. Its property encompasses alarge amount of common land—about 10 per cent. of the totalcommon land in England and Wales. We are all very aware of the benefitsof the National Trust, through its work in conservation, access,recreation and so on, and many commons were entrusted to it because ofits duties and powers as laid down in the National Trust Acts. It isthe only organisation covered by those specific Acts, which range from1907 to 1971. The NT has a great worry that the provisions under clause36, as well as those under clause 44, could enable the nationalauthority—the Minister in England’s case, or the WelshAssembly—effectively to negate or abolish part or all of one ofthose Acts. I share the NT’s concerns in that regard. The NT has many powers andduties that are similar to those of local and national parkauthorities, such as those given by the Open Spaces Act 1906. However,that Act is exempt from clause 36 but the National Trust Acts arenot. Elsewhere in theBill, other Acts, organisations and places such as Epping Forest andthe New Forest are excluded from parts of the Bill because arrangementsare already in place for effective commons management. National Trustproperties should also be exempted. In the other place, Lord Bach gaveassurances that in practice those powers are unlikely to be used, butthe risk remains and I do not understand why the amendment cannot beaccepted so that the Bill states clearly that the National Trust cannotbe affected by ministerial order under clauses 36 and44. As we often say inCommittee, that is not a reflection on the present Government, but wedo not know what may happen in future. As the hon. Member for Breconand Radnorshire said several times during our proceedings, the subjectof the Bill is unlikely to come back to the House for many years, so itis vital to get the provisions right now. If anyone can tell me theshape, complexion and nature of the Government in 50 or 60 years, they have a better crystal ball than I have. None of uscan foresee how a future Minister might use the powers in the Bill andit is important to make the matter clearnow. The NationalTrust has given an example of where there might be conflict. Heatherburning might conflict with the trust’s management objectives ofconserving habitat, restoring soil and so on, but under the clause theMinister could order the National Trust Acts to be amended so that thetrust could not manage vegetation without the statutory commonsassociation’s consent. The National Trust would not be able tocarry out conservation management if the statutory commons associationdecided that it would not facilitateagriculture. TheNational Trust Acts are unique and it is right that they should remainso, which is why I was happy to table these amendment on behalf of theNationalTrust. Mr.Drew: I shall be brief. Will the Minister say somethingabout disputes that might occur between a commons association orcommittee and the National Trust? That is not entirely outwith myexperience inmy constituency where the National Trust has,understandably, acquired land on the now renowned Minchinhampton commonwhich has not had clear ownership. That has led to a dispute withpeople living on and around the common. It is possible that ifrepresentation were made by the commons association or committee andincluded representatives of householders in the local community itwould be in dispute with the National Trust. This is a hideouslycomplicated legal minefield involving my usual friends, easements, andit is more than that because it is an ownership dispute. Part of the problem withcommons is that when there is no clear owner the nature of the modernworld is to try to find one. When the National Trust is the mainmanager, if not the owner of the whole common, the obvious owner whoshould be allowed to acquire that right is the trust, but that can leadto conflict. Will the Minister explain how such conflict could beresolved without going through the courts? Sadly, the latter couldhappen in my area. Such an explanation might ease my concerns andclarify the situation. 9.45am Mr.Rogerson: I welcome you to the Chair for our proceedings,Mr. Weir. I support the thinking behind the amendment. In myconstituency of North Cornwall, the National Trust manages significantareas of land, particularly along the coastline. Given the existingsystems of management and well established relationships withorganisations in the community, which are recognised and have operatedwell for a number of years, it would seem odd if a commons council,association or whatever it may be called, were to vary the managementsystems for part of an area of common land that cuts across land thatis owned—land which might sit in the middle of an area of landmanaged by the National Trust. I hope that we preserve the schemes thatare already in place and allow them tocontinue. JimKnight: I am grateful for the amendments because theypresent another opportunity to explain our position on something thathas occupied those in the other place. I am meeting the chief executiveof the National Trust shortly, and I am sure that it will be a subjectfor conversation on that occasion as well. Any provision made under clause36 would be made through an establishment order, which establishes acommons association. An order cannot be made unless there issubstantial support for it, having regard to the views of key interestsin the common. That would include the National Trust in its capacity asowner or as the body with statutory functions relating to themanagement of the land. If the trust had significant objections, theSecretary of State would be most unlikely to make an order, so in thatrespect the interests of the trust areprotected. Mr.Rogerson: Will the Minister giveway? JimKnight: There is plenty of argument still to come, but Iam always delighted to giveway. Mr.Rogerson: I am grateful to the Minister for giving way. Iunderstand that the National Trust, as a significant landowner, wouldhave a role to play in the setting up of such a body. However, once inoperation, if relationships were to change slightly, issues might ariseand there could be disagreements further down theline. JimKnight: Yes, there may be disagreements further down theline, but we must consider whether we make an exception for theNational Trust, as opposed to any other legal interest in the common. Iwould argue that it is difficult for us to do so. My hon. Friend the Member forStroud asked about disputes between a trust and an association. Mostdepend on the nature of the dispute and it probably would not be amatter on which the association has any jurisdiction. I regret that itwould normally be a matter for the courts, but I hope that theformation of associations—happening with the NationalTrust’s consent—would bring the interests in the commoncloser together, generating a better understanding, meaning that thosedisputes would be less likely to arise. The difficulty is that in thediscussions we have had here, in the other place and at official level,no one has yet specified what in the National Trust Acts might beamended under the powers in clause 36, or why. The purpose of a commonsassociation established under part 2 in relation to National Trustcommon land would be to promote the better management of the common.What purpose could we have in seeking to diminish any protectionafforded to that land by the National Trust Acts? There seems to be anunderlying perception that commons associations would be an unwarrantedinterference with the National Trust management of common land and thatthey are not needed. That cannot be right. Until recently, fewerNational Trust commons were achieving the public service agreementtarget than commons nationally, and the establishment of associationson such commons can only assist rather than hinder the achievement oftarget conditions. It is highly unlikely that wewould wish to useclause 36 to make amendments to the NationalTrust Acts. There is even less need in relation to clause 44, becauseschedule 4(3) does the job already. We could introduce an amendmentthat in effect “Nothing in this clause shall apply to theNational Trust Acts 1907 to 1971.” We could equally say,“Nothing in this clause shall apply to the Greenham and CrookhamCommons Act 2002.” We could exclude the clause’soperation from any of 10,000 local and private Acts that have beenpassed since the end of the 18th century, and any of whose promoters fear that clause 36 could be used to interfere with their own legislation. Should we exclude from thescope of the clause the Malvern Hills Acts or the DartmoorCommonsAct 1985? Why draw the line at making specialprovision for only the National Trust? It owns large swathes of myconstituency, and it is a great and special organisation; but can wejustify the precedent of an exception? Public, general Acts ofParliament contain numerous provisions similar to those in clause 36.They are required because of the vast number—10,000 orso—of local and private Acts, and the impossibility of knowingwhat is in them. The powers will be exercised seldom, carefully andafter proper consultation with the trust and others, and they shall besubject to parliamentary oversight. It is true that several Acts ofParliament contain savings for the benefit of the National Trust, butthose savings are concerned essentially with the inalienable status oftrust land, and that status has never been under question in theBill. The hon. Memberfor South-East Cambridgeshire referred to the New Forest and othersexcluded from the operation of the Bill, and asked, so why not theNational Trust? The New Forest is not exempt from the scope of the Billas a whole; part 3, for example, applies to it. It is exempt from part1, because its own registration system preceded the 1965 Act. In thatregard, it is appropriate to make that exemption. I hope that that helps theCommittee and persuades the hon. Gentleman to withdraw hisamendment. | 
