Jim
Knight: The amendments tabled by my hon. Friend the Member
for Stroud and the hon. Member for North Cornwall would go further than
clause 45 permits and impose a duty on local authorities to take
action. As my hon. Friend said, we recently discussed the issue of
duties and powers, and I shall not dwell on it. Authorities should
retain the discretion to act, and they should be responsive to local
priorities and electors.
Moreover, it would be quite
wrong to compel authorities to act in every case regardless of the
circumstances. An area of public land might be of little public value,
remote from any public access, and of no use to agriculture, and the
threat might be trivial or ephemeral, but a duty would require the
local authority to take up the cudgels just the same as if there were a
rave on the village
green. I accept my
hon. Friend’s admonition that given the discretion to act, local
authorities too often do not act all. That point has been made to me by
others, and I agree with him that that is sometimes unsatisfactory.
However, we hope to do two things that I believe might help. First, we
will work with local authorities and the Local Government Association
to improve understanding of the legislation and the authorities’
role in implementing it. That will include the publication of guidance
to authorities, and we will consult on what that guidance might say
about authorities’ use of the powers under the clause.
Secondly, we are considering
whether local access forums could advise authorities on taking action
under clauses 41 and 45 to promote public access to common land,
particularly where public access is currently restricted or excluded. I
am sorry to disappoint my hon. Friend again, but I hope that my
explanation of where the Government stand on amendments Nos. 82 to 84
is
adequate.
Paddy
Tipping: In general, I support the approach of my hon.
Friend the Member for Stroud, but I think that there is a strong case
for using local access forums. That would be a much better way forward
than the first alternative involving education and consultation. I
press the Minister hard to consider local access forums as the way
forward, because they would consist of local people who know local
problems and can often find local solutions. He has found a neat way
forward.
Jim
Knight: I am grateful to my hon. Friend for his support
for the second option. I consider myself well
pressed.
Jim
Knight: The Corby trouser press of the Committee
system. I turn to
amendments Nos. 85 and 87. I would be first to acknowledge that in the
common land policy statement of 2002, we committed to the vesting of
unclaimed land in a suitable body for long-term management. In
hindsight, however, there is a risk of confusing the questions of
ownership and management. We all want to promote better
management—that is what the Bill is all about—but we do
not need to tackle difficult questions of ownership
unnecessarily. I
accept that the 1965 Act provided for the vesting of unclaimed greens
in local authorities. We think it unlikely that the same approach could
be taken now. The 1965 Act created no mechanism to reverse vesting, for
example, and today such an approach would be likely to have human
rights implications. The fact that vestings under the 1965 Act gave
rise to few problems perhaps reflects the lower value of a green to the
owner than common land and, therefore, the lower likelihood of
challenge from a dispossessed owner. Whatever the merits of that
approach, it does not commend itself
today. In responding
further to amendments 85 and 87, I shall also refer to amendment No.
104, which was spoken to by the hon. Member for North Cornwall. It
would enable a local authority to assume full powers of management of
unclaimed common land where no commons association exist. We agree that
local authorities should be empowered to take on the management of
unclaimed commons so that they can be managed by local people with
community interests at heart. However, local authorities can already do
this in the majority of cases, through management schemes under the
Commons Act 1899. Moreover, our amendments to that Act will ensure that
such schemes are fit for purpose in the 21st
century.
Mr.
Rogerson: I am grateful to the Minister for his
reassurances, although I am cautious in my welcome. He referred to the
majority of cases. There might well be cases that cannot be resolved
through the powers that he described. How does he suggest those issues
should be
resolved?
Jim
Knight: I shall write to the hon. Gentleman and to the
Committee to sketch out what that small number of cases might be. Then
he can judge whether he wants to do anything
further. It is perhaps
unlikely that local authorities would want to invest resources in
managing a common that could be reclaimed at any moment by its owner,
but a scheme under the 1899 Act anticipates and protects against that
outcome. I hope that my hon. Friend the Member for Stroud will accept
that if an authority has full powers of management, it does not need to
gain ownership of the land, as the amendment proposes.
Beyond the 1899 powers, it is also possible to manage unclaimed land
under part 2 of the
Bill. I hope that the
hon. Member for North Cornwall will also agree that powers of
management cannot be bestowed like confetti, with authorities choosing
when and where to exercise them. They must be properly contemplated and
any commitment entered into should be by the making of a
scheme. 2.30
pm Finally, I am
glad to be able to give my hon. Friend the Member for Stroud some
reassurance on amendment No. 86—I regret that I have been a
little negative about most of his recent amendments. Clause 45 as
drafted would have the same effect if read in context. Schedule 9 to
the Environment Act 1995 sets out various powers which National Park
authorities may exercise alongside local authorities, and paragraph
6(a) of schedule 5 to this Bill amends schedule 9 to the 1995 Act to
include reference there to clause 45. It may seem odd not to include a
specific reference in clause 45, but it is helpful if the 1995 Act
maintains in one place an up-to-date list of these shared
powers. The powers of
a conservation board are set out in the order establishing the board.
If the local authorities promoting a new conservation board wish it to
have the powers in clause 45, they can ask for that outcome. That is
the way that the legislation works, and it may be of interest to the
Committee to know that the boards established for the Chilterns and the
Cotswolds will be able to exercise the powers inclause
45.
Mr.
Drew: I think I will quit while I am on a winning run,
especially as the Minister mentioned the Cotswolds, which affect my
constituency. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
45 ordered to stand part of the
Bill.
Clause
46Powers
relating to unauthorised agricultural
activities
Mr.
Drew: I beg to move amendment No. 88, in clause 46, page
27, line 11, at end
insert— ‘(7A) An order made
under paragraph (b) of subsection (7) may authorise the relevant
authority to carry out any requirement of an order which a person on
whom a notice is served under this section has failed to comply with
and to recover from that person the costs reasonably incurred by the
relevant authority in doing
so.'. I
will not delay the Committee for long. The amendment would simply
strengthen the provision when there is no immediate sanction available
for a court order for the removal of unlawful works that is not carried
out. The idea is to give greater power to the relevant authority to
take action to ensure that the problem is cleared up. It parallels
section 137ZA of the Highways Act 1980, which allows the relevant
authority to make good unlawful agricultural work.
With your tolerance, Mr. Weir,
because presumably there will not be a stand part debate, I have been
asked by the National Farmers Union whether we would
consider the impact of non-agricultural work, especially by those who
want to bring vehicles on to a piece of common land or a village green.
There was an attempt in the other place to include a clause on how
vehicles of various descriptions would be excluded. It would be useful
to know whether the Government would consider tabling a proposal on
Report for a reserve power to deal with non-agriculture abuses of
common
land. Mr.
Llwyd: I support the hon. Gentleman’s final
comments. He is probably right in saying that, in a way, this is a
stand part debate. I should hope that, in view of my sickening
sycophancy towards you this morning, Mr. Weir, you will permit me to
take two minutes of your precious
time. I fully support
the point that the hon. Gentleman made about reserve power, because as
the clause is currently framed it deals simply with breaches in
agricultural practice. As we have mentioned many times during the
debates on Tuesday and today, there is a great concern about
non-agricultural transgressions, that is, the damage all round that
motorcycles and 4x4 vehicles do to agricultural interests and the
natural, living environment. One hopes that the Minister will consider
this point carefully and respond, because there is surely a good cause
for making the clause a general reserve power for the Minister, not
just confining it, as is the case at present, to unauthorised
agricultural activities. We have been urged to take this course of
action by the National Farmers Union, the National Sheep Association
and the Welsh Commoners Association, to which I am indebted for telling
me about
it.
Jim
Knight: I shall address the amendment, then deal with the
other points that have been
made. The purpose of
the amendment is to allow a national authority to take action to stop
an unauthorised activity on a common and recover its cost, where a
person fails to comply with a court order requiring them to cease that
activity. We do not see a role for a third party, such as the national
authority, trying to physically stop an unauthorised agricultural
activity. If, for example, a court orders a person to cease depasturing
livestock beyond the number of rights held, the authority would have to
find, identify and remove the offending animals. That would be
difficult on a large upland common. The authority would then have to
engage in further proceedings in order to recover costs from the
individual concerned, which might be unsuccessful if they had already
ignored the original court order. A more effective approach is to use
the judicial system to ensure that the individual, who knows his
livestock and where they graze, personally takes action. That may take
longer to achieve in some circumstances, but in the long run it will be
more cost-effective. The provision carries the ultimate sanction, once
a number of hurdles have been overcome, if it becomes necessary, of
contempt of court
proceedings. My hon.
Friend the Member for Stroud and the hon. Member for Meirionnydd Nant
Conwy asked why we have addressed agricultural activities only and
wanted us to think about non-agricultural activities harming a common.
As they anticipated, my answer is
that a range of instruments already exists for dealing with unlawful
activities that might be damaging a common, such as driving a motor
vehicle over it, or building on it without consent. It would not be
appropriate for the national authority to have powers of enforcement
against criminal activities that lie more properly with the police. We
have to be clear about where those responsibilities
lie. Section 59 of the
Police Reform Act 2002 allows the police to seize any mechanically
propelled vehicle being driven in a careless or inconsiderate manner on
or off road.
Mr.
Llwyd: I hear what the Minister says and I know that he is
trying to be helpful, but I do not recall any prosecution or action by
the police along the lines that he is referring to. In fact, the police
cannot wait on the uplands for a 4x4 to cross the common. It is
virtually impossible to enforce the measure. In fact, it is very much
like the Hunting Act 2004—no real regard is given to the way in
which it is enforced. The Minister’s words give me no comfort,
and I would urge him to have another think about the
matter.
Jim
Knight: I will, as always, reflect on the proceedings of
the Committee. Not only has the Home Office issued guidance to police
in England and Wales on the legislation and the circumstances in which
it might be used, but the power has been used very effectively in a
recent clampdown in Wales, where a great many section 59 notices were
issued to off-road bikers who were riding illegally over commons in
Caerphilly and two bikes were confiscated. In that case, the police had
teamed up with countryside rangers from the local authority and the
Forestry Commission to target the problem.
Mr.
Llwyd: I am encouraged by that; obviously I must go home
more often.
Jim
Knight: I am grateful to the hon. Gentleman for raising
the issue and for pushing me as hard as he did, because it gave us the
opportunity to identify that example. I hope that others will pay close
attention to the proceedings of this Committee and will notice that.
Perhaps hon. Members here will go out and evangelise about the
excellent work that has gone on in Caerphilly—they could
campaign in their own constituencies for the powers to be properly
used, or use the antisocial behaviour toolkit issued by the Home Office
as part of its Together campaign.
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