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Commons Councils (Standard Constitution) (England) Regulations 2010

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, 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 21 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 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 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 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. 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 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.