Mr.
Paice: I shall not detain the Committee by going back over
amendments Nos. 54 and 55; we have probably gone as far as we can on
those two. I understand the Minister’s points, but I hope that
we can find a way through clause 43 to ensure that we do not have to
have recourse to law to deal with what I would consider to be vexatious
or minimal issues—those brought by somebody who has a bee in his
bonnet and wants to pursue it. It is all very well to say that the
courts do not have to find for the complainant; that is small comfort
for a defendant who has been caused a lot of trouble, inconvenience and
cost. Perhaps we can return to that under clause 43 or outside the
Committee. If we cannot, we will have to do so on Report, because
important issues arise from the temporary nature of some
actions. On amendment
No. 56, which concerns Travellers, I am glad that the Minister did not
read out the first comment that he was going to make. That would have
trivialised an important situation. As one of many Members who have
such problems, I am very familiar with the legislation. It is easy for
a Minister to read out all the legislation that exists, but some of us
know that it does not work like that on the ground. The 1994 Act, which
my right hon. Friend the Member for Penrith and The Border piloted
through the Committee stage as Minister of State in the Home Office,
made significant changes, and as shadow Minister for the police I was
instrumental in persuading the Government to make further changes in
the context of the Anti-social Behaviour Act
2003. As far as common
law is concerned, the lord of the manor is still required to agree the
removal of Travellers before the police can do anything. That is often
the stumbling block, particularly if he is not easily contactable or,
for some reason, is unwilling to take action. I am simply trying to
underline the fact that the situation is illegal and there are still
serious issues to be addressed. At this very moment, there are commons
in my constituency that have Travellers on
them, and there are serious difficulties in removing them, despite all
the attempts to legislate. We should not trivialise the issue in any
way. We have had a
good debate on an important matter, and there are further amendments to
be debated under this clause, so I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Jim
Knight: I beg to move amendment No. 9, in clause 38, page
22, line 7, leave out from ‘are' to end of line 8 and
insert ‘carried out under a power
conferred in relation to that particular land by or under any
enactment;'
The
Chairman: With this it will be convenient to discuss
Government amendments Nos. 10 to
13.
Jim
Knight: I will attempt to be brief. Normally, under clause
38, proposed works that would impede access to or over common land
would need the prior consent of the national authority. Such works
might include fencing, building, surfacing or earth works. Subsections
(6)(a) and (6)(b) exempt a particular type of work from that
requirement. Amendments Nos. 9 and 10 are designed to emphasise the
fact that in order to be exempt in that way, works must be carried out
under a power conferred by or under an enactment—for example,
those undertaken by a statutory board of conservators. Amendment No. 12
is consequential.
Amendment No. 11 relates to
commons management schemes made under the Metropolitan Commons Act 1866
or the Commons Act 1899. Essentially, such schemes give conservators in
the first case, or district councils in the second, powers to manage
commons for public benefit. Clause 38(6)(c) exempts works authorised
under such schemes from national authority consent unless consent is
required by the scheme itself. Since drafting we have discovered that
existing schemes are not consistent in the way that they treat
particular types of work such as erecting buildings, so the amendment
makes the position on consent consistent across such cases. Amendment
No. 13 is a technical amendment to put it beyond any doubt that, as for
consents under the current works control regime, clause 38 consent is
free-standing and does not affect other rights or constraints that may
have a bearing on the lawfulness of the works
proposed. Amendment
agreed
to. Amendments
made: No. 10, in clause 38, page 22,line 9, leave out
from ‘where' to end of line 11 and
insert ‘the works are carried out
under a power conferred by or under any enactment applying to common
land;' No.
11, in clause 38, page 22, line 13, leave out ‘the appropriate
national authority' and insert ‘any person'—[Jim
Knight.]
Mr.
Paice: I beg to move amendment No. 57, in clause 38, page
22, line 16, at end
insert— ‘( ) works necessary
to comply with management agreements between a statutory commons
association and a public body.'.
The
Chairman: With this it will be convenient to discuss the
following amendments:
No. 58, in clause 38, page 22,
line 16, at end insert— ‘(
) works which have been agreed by a statutory commons association as
necessary for the welfare of
animals.'. No.
59, in clause 38, page 22, line 16, at end insert—
‘( ) works which have been agreed
by a statutory commons association as necessary to prevent the unlawful
access of vehicles onto the
common.'. No.
60, in clause 43, page 25, line 4, at end insert—
‘(e) the welfare of
animals.'.
Mr.
Paice: This group follows on from the group that we were
discussing a few moments ago. The intention is the same. It is not to
undermine the role of the national authority but to minimise
unnecessary intervention and bureaucracy in order to speed up the
process of management of the commons. I have no doubt that the Minister
will again refer us to clause 43; as it has no amendments, we may have
a long debate on that clause when we reach it. I am seeking to amend
subsection (6), as opposed to subsections (2) and (3) in the previous
group. I confess to being at somewhat of a loss as to the difference
between this and clause 43. Subsection (6) states:
“The prohibition in
subsection (1) does not apply to”
paragraphs (a), (b), (c) and (d). Clause
43 also lists circumstances where clause 38 is not to apply. I am not
too sure what the distinction is: I might just as well have tabled
these amendments to clause 43.
The four amendments address key
areas. Amendment No. 57 is straightforward. It may well
happen—indeed, it is probably desirable—that a statutory
commons association makes an agreement with a public body, probably
Natural England or the Countryside Council for Wales. The purpose of
the amendment is to facilitate the carrying out of works under such an
agreement. An agreement with a public body should be sufficient to give
the works the go-ahead. Amendment No. 58 applies where a statutory
commons association believes that an action is necessary for the
welfare of animals. Amendment No. 60 seeks to insert a similar phrase
in clause 43. The
House is always concerned about the welfare of animals. Even with the
speeded-up process and the codes of practice, sometimes actions
necessary to assist the welfare of animals need to be carried out very
quickly. Whatever system is in place, it will not always be quick
enough. Therefore if it is felt that a measure is needed to protect
animals—predominantly grazing animals, but it may be wild
animals—a decision of the statutory commons association should
be sufficient.
Amendment No. 59 comes back to
the point raised by the hon. Member for Meirionnydd Nant Conwy a few
moments ago and which I mentioned in Second Reading. It is the issue of
unlawful access of vehicles on to the common. I heard what the Minister
said about disabled access. Obviously none of us wants to effectively
debar the disabled from accessing commons in their appropriate
vehicles. However, the Minister knows full well that there are a number
of commons with serious problems of incursion. That might be illegal
and the Law of Property Act 1925 might say that a person should not go
more than 10 m off a highway, but we know that it happens. There are
times
when the only way to stop that happening is to erect what some people
call “tank traps” and “ditches” and all
sorts of other impediments to vehicular access to a common. That has
nothing to do with the right to roam or people walking and enjoying
their rights of common, but relates to people taking vehicles on to the
common, which is often to the detriment of other users. I hope that the Minister will
go away and think in more detail about the matter because there needs
to be provision for such measures when local people agree that it is
necessary in order to protect the rights of the vast
majority—the legal users of the common, whether they be holders
of commons rights, walkers or anybody else who wishes to access the
common lawfully. I
hope that the Minister will understand that the amendments are designed
to be constructive and helpful, to reduce bureaucracy and to assist
works that protect our commons, rather than those that hinder them. I
hope therefore that he will look favourably upon, if not the fine
detail, at least the principles behind them, particularly on the issue
of unlawful vehicular access. I hope that he will agree to go away and
reflect further, because clearly I am not the sole proponent of that
view.
Jim
Knight: I have always reflected carefully on everything
that the hon. Member for South-East Cambridgeshire says, and I will
continue to do so. The
hon. Gentleman asked about the distinction between the exemptions under
clause 38 and those under clause 43. Under clause 38, those exemptions
are automatic—the regime will not apply, per se—whereas
clause 43 provides the national authority with the power to exempt
particular categories of works by order subject to the negative
resolution procedure. I hope that that helps to set out the
difference. Clause
38(6) gives a global exemption from consent only to works carried out
under statutory powers. Those must relate to either the common in
question or common land in general. For example, such powers might be
exercised by a board of conservators, a local authority or a statutory
undertaker. Works carried out or organised by a commons association
using powers conferred under the Bill are excluded specifically from
the exemption because commons associations are not required or even
intended to be fully representative bodies, as was discussed on Tuesday
during our deliberations on the amendments tabled by my hon. Friend the
Member for Stroud. Often they represent only those with a legal
interest in the land because of the limited nature of the functions
that can be conferred on them under part 2 of the Bill.
It would be inappropriate for
the Bill to give commons associations carte blanche to undertake
particular types of works on a common because they are not fully
representative. For example, management agreements might envisage
extensive lengths of fencing to separate areas of different grazing
intensity, but it would not be right for the Bill to rubber stamp such
works by associations if they would impede access to a common, or to
allow them to make agreements that rely on such works. Those proposed
works should receive the same scrutiny as they would if they were
proposed by the owner of the land.
On animal welfare and vehicular
access, the examples given in this debate and elsewhere of why certain
works might be needed for animal welfare reasons reinforce, to my mind,
the need for such works to receive careful scrutiny. For example, using
fencing to channel animals away from recreational hot spots, or to keep
them from straying on to roads could have a significant and
long-lasting effect on the open and unenclosed nature of commons about
which I talked. Proposed work on shelters or feed stations for animals
is of a scale and significance that should receive proper scrutiny
through the consent rĂ(c)gime and I am resistant to doing anything
that threatens animal
welfare. 1.30
pm I responded
earlier to the hon. Member for Meirionnydd Nant Conwy on vehicle access
and there is not much to add. I questioned my officials when I had read
the briefing from the Country Land and Business Association which
mentions tank traps. I am satisfied that it will be possible to use
clause 43 as and when such devices come forward so that they do not
prejudice disabled horse riders and others who want legitimate access.
I hope that the Committee will be equally
satisfied. We shall
resist amendment No. 60 for similar reasons. We intend to consult
widely on whether and how we should use the power in clause 43 to
exempt particular types of work from the regime, but we are clear, as I
said earlier, that we will use it only in relation to minor or
temporary work. The sort of work that the hon. Gentleman has in mind is
significant and potentially controversial in its effect on a common and
its use by others. As I said, such work needs proper scrutiny and I
hope that the hon. Gentleman will withdraw his
amendment.
Mr.
Paice: I will not prolong the Committee’s
consideration. I have made my points and the Minister understands that
there is concern on the Opposition Benches about the general impact of
clause 38 on sensible measures that people may feel are necessary and
about the need to reduce what appears to be a massive sledgehammer to
crack a nut: having to go to the Secretary of State for approval for
virtually everything. That is what we are trying to remove.
I am sure that the Minister
will have caused further debate on clause 43. We may return to some of
the issues then and, I suspect, on Report. In the meantime, I beg to
ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Amendments
made: No. 12, in clause 38, page 22, line 17, leave out subsection
(7) and insert— ‘(7) In
subsection (6)(a) the reference to an enactment does not include Part 2
of this
Act.' No.
13, in clause 38, page 22, line 29, leave out from ‘under' to
end of line 31 and
insert ‘subsection (1) of this
section constitutes consent for the purposes of that subsection
only.'—[Jim
Knight.] Clause
38, as amended, ordered to stand part of the
Bill
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