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Commons Councils (Standard Constitution) (England) Regulations 2010

Volume 718: debated on Tuesday 23 March 2010

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Commons Councils (Standard Constitution) (England) Regulations 2010.

Relevant document: 9th Report from the Joint Committee on Statutory Instruments.

My Lords, these regulations are an essential step towards the establishment of commons councils in England, with statutory powers to manage common land. Commons councils will bring together the interests in a common to exercise management control.

The schedule to the regulations sets out the standard constitution which will apply to all commons councils. It addresses such matters as the appointment of council members, the proceedings of a council and the preparation of accounts. Each commons council will be created by its own establishment order made by the Secretary of State, which will set out additional or alternative provisions tailored to its particular requirements. Defra has published two model establishment orders to show how they might supplement the provision in the standard constitution—for example, by designating the number of council members and who will be entitled to elect them. No two commons are the same and this approach will ensure that each council operates under a single core framework but is responsive to local requirements.

A commons council can only be established if the Secretary of State is satisfied that it has substantial support, having particular regard to representations from commoners and others with a legal interest in the common. That is crucial to our approach: the Government cannot impose commons councils on unwilling commoners but can only respond to a call to set one up. The great advantage of commons councils is that they will be able to manage their own affairs by majority voting, hence relieving the difficulty of reaching unanimity among the collective interests. Councils will be able to enter into environmental stewardship and make rules, similar to by-laws, to enforce adherence to good commoning practice and the terms of the agreement.

These regulations follow a consultation which began in September 2008. As a result, we have made a number of modifications, such as to confer greater flexibility for keeping “live registers” of commoners’ rights. The next step will be to work towards the establishment of the pioneer councils. Natural England has entered into negotiation concerning the potential establishment of commons councils on Brendon Common, Bodmin Moor and in Cumbria, and has allocated resources for this purpose. We expect the first commons council to be set up late this year or in 2011.

The regulations are part of enabling a long-sought new approach to the management of common land by those who know it best—the commoners, landowners and other local interests. Common land represents about 3 per cent of the land area of England but is exceptionally valued for its contribution to nature conservation, hill farming, recreation, archaeology and culture. This new legislation will play a significant role in improving the management of such lands and I commend it to the Committee.

My Lords, I thank the Minister for introducing the regulations. The very slimline statutory instrument presents an interesting contrast with a highly substantial Explanatory Memorandum, but I suspect that that it is inevitable given the complexity of the issue. I understand the Government’s strategy of trying to present a framework that can then be adapted to meet the individual circumstances of particular commons.

A lot of the complexity comes from the fact that commons are occupied in a number of different ways and usually have grazing rights, and the relationship between the commoner or grazier and landowner is often complex. That is particularly so in respect of stewardship schemes; I would be interested in the Minister’s view on the way in which environmental stewardship schemes and commons work together. There are circumstances in which landowners have been obstructive on commoners getting involved in stewardship schemes. There have also been situations in which landowners have sought to retain the benefits of the stewardship schemes for themselves, in which case what benefit is there for the commoner?

Getting the balance right is difficult. I understand the concerns. The CLA has written to me, pointing out a number of issues on which it is concerned. It believes that there is a risk in setting up the commons councils, and that the rights of the commoners and landowners can become confused. There is an important distinction between what a commoner and a landowner can do on common land. While all parties will often run their businesses alongside each other in a holistic manner, the lack of understanding of commons law by statutory government agencies has often led to commoners being encouraged to adopt management schemes through agri-environment schemes that the landowner should in fact be involved in adopting or delegating as he thinks fit. That brings us back to the issue that I mentioned.

Therefore, it is imperative that landowners are properly represented on commons councils where the landowner is known. Indeed, the Minister will understand that in certain cases the landowners of commons are not identified as such. There should be no bar to setting up a commons council where that might be the case. There can be a considerable difference in the dynamics of a commons council where the commoners are local and active as opposed to distant and remote. Similar is the case for those with an active landowner—the landowner may be non-existent, as I said, or largely absentee. However, I accept the Government’s general premise that the complexity should not prevent the creation of commons councils where they are desired and there is a general belief that they can improve the management of common land.

I would like to ask the Minister a few questions. Two things indicate the challenge of the statutory instrument: the time lag from 2006 to now in getting the regulations tabled, and the sheer thickness of the Explanatory Memorandum. I draw one point in particular to the Minister’s attention, because it shows that the Explanatory Memorandum may have multiple sources and have been put together in a hurry. If he turned to page 28 he would see draft accounts, carefully notated—note 1, note 1b, note 2 and what have you—but there are no notes. I have looked through the Explanatory Memorandum and I find them not. I suspect this is indicative of the fact that several documents have been put together to provide an Explanatory Memorandum.

I will not labour that point but I have some direct questions for the Minister. On page 6—of the Explanatory Memorandum, rather than the regulations—paragraph 4.1 says:

“Statutory councils will be formed only where there is substantial local support”.

How will this be judged? For example, will support or opposition from the National Farmers’ Union, of which I am a member, or the CLA, of which I am not, outweigh that of tenant farmers? Also on page 6, paragraph 5.1 says that,

“we plan to establish commons councils at a steady pace, so that we cannot achieve our target number overnight”.

Does this mean that the Secretary of State will hold back on approvals if there is a great rush of requests, even if demand is considerable? Does it also mean that the Government, having passed the legislation, have a hidden agenda not to achieve the target? In other words, do the Government really want to play this softly, or are they prepared to respond to demand if local opinion produces a large number of applications?

Turning to page 7, I see that paragraphs 5.2 and 5.4 seem to suggest that the Government may be planning to support the creation of councils in certain areas. In other words, they already feel that a commons council might be useful for particular areas. If this is the case, what criteria have the Government set themselves in saying that these areas are ones which ought to be looked at? I move on to page 10 and paragraph 5.13, which says:

“Benefits have not been monetised due to a lack of available evidence … it is expected that the principal benefits … will be substantially greater than costs. Work has been commissioned … This is expected to report in early 2010”.

Do we have that report? Where is it? Has it shown the expected benefits or not? I hope that, in asking these questions, I am not probing the Minister too far. It is useful if we have explanations on the record.

Finally, what happens when a commons council runs out of steam? The motivation for setting them up is the enthusiasm and thrust of local people who want to see a commons council in operation. Have the Government a strategy for circumstances in which the people who have engaged in running a commons council find that they do not have the time or interest to support the momentum that originally led to it being set up?

My Lords, I too welcome these regulations and the ability to debate them this afternoon. I declare an interest as a vice-president of the Open Spaces Society and a member of the Access, Conservation and Environment Group of the British Mountaineering Council.

The noble Lord, Lord Taylor of Holbeach, has raised several relevant questions, with which I will try not to overlap too much. I welcome the volume of information that we have been provided with this afternoon. Sometimes we get regulations which the Explanatory Memorandum simply rewrites in slightly different—and sometimes not even slightly different—words. This Explanatory Memorandum, particularly the annexes to it, provides a great deal of useful help and information.

We have in front of us today the Commons Councils (Standard Constitution) (England) Regulations, a very full impact assessment—which contains a large amount of interesting and useful information—and the rather wonderful draft model orders for commons. One model order is for the West Barsetshire Commons Council—I always think of it as Borsetshire rather than Barsetshire—of which we had a previous version more than three years ago when we debated the Commons Bill. Another model order is for the Barset National Commons Council. The model orders are no doubt closely modelled on the draft proposals coming forward for the three commons councils being considered at the moment, including for the Lake District, which I think we all welcome and look forward to seeing in operation.

My first general point overlaps with that of the noble Lord, Lord Taylor; that is, it seems a long time since we debated the Commons Bill as it went through this House. In fact, I think that it was before the new furniture came into the Moses Room.

The noble Lord says that it was before he arrived on the scene. Some of us have fond memories of those debates, as always, but they seem rather a long time ago. We had hoped that Part 2 might have been commenced before January this year. Nevertheless, it has now started and we can get to work. I ask as an aside—the Minister may want to write to me afterwards—how many parts of the Commons Act have not yet been commenced and when do the Government propose that they are? What orders and regulations do the Government expect to publish and bring before the House? Which of the orders and regulations set out in the Act are they not intending to act on?

The proposals put forward for membership of and elections to the councils are sensible. They are flexible in that they will allow each order for each commons council to reflect the circumstances of that common, which has to be right. I see that the Duke of Omnium is to be a member of the Barset National Park Commons Council; I would have thought that he might have been too busy doing all his opinion-polling at the moment, but never mind. The proposals are sensible, and the flexibility built into the system is okay, but it will require a lot of time and effort to adopt and adapt the model constitution to each proposal for a commons council. The noble Lord, Lord Taylor, asked what the capacity of Natural England is to deal with them. The impact assessment suggests that, over 20 years—which is quite a long time, even by House of Lords standards—10 umbrella commons councils might be set up. I presume that they will be the bigger councils for wider areas, including in some cases a lot of commons. Then there will be 29 smaller ones that might include just one common or perhaps two or three together. That is 39 commons councils over 20 years—an average of two a year, which, on the face of it, does not seem to be a huge burden on Natural England. If this proposal becomes very popular and more commons come forward spontaneously—as opposed to those which Natural England is trying to motivate people to set up, presumably because they are in SSSIs or important areas for conservation or landscape according to Natural England’s criteria—will the organisation be able to cope or will there be a queue that is not met during this period? Thirty-nine over 20 years does not seem to be a very ambitious target, although perhaps it is not a target but an estimate of the number of councils that there will be.

That leads on to the question of where the applications or processes for setting up commons councils will come from. How many do the Government expect to be led top-down, whereby Natural England goes around the country trying to persuade people to set them up? Perhaps it already has a list of what it considers to be priority places. Is that what will happen? How far will it be able to react as spontaneous applications come in?

The next issue that I want to raise is relatively detailed and arises from the regulations in front of us today, and from the draft constitutions for Barsetshire or Borsetshire. If I read out paragraph 14(2) it will be fairly obvious what is meant:

“The public may, by resolution of the council or committee (as appropriate), be excluded”—

normally the public will be allowed into these meetings—

“from a council or committee meeting during an item of business in respect of which it is likely that publicity would be prejudicial to the public interest by reason of the confidential nature of that business, or for other special reasons stated in the resolution”.

Paragraph 15(2) goes on to say:

“A commons council may exclude from any such publicly available agenda and minutes any information … in respect of which it has passed a resolution under paragraph 14(2)”,

excluding the public. My reading of that is that, first, the argument is rather circular. It says that the public can be excluded because the business is confidential. However, I compare that with local government practice, where the nature of the confidentiality has to be clearly set out in a resolution. It may, for example, be due to a personnel issue, it may be about employees or it may be to do with a contract, a legal case or a number of criteria set out in the Local Government Acts which clearly have to be invoked. You cannot simply say, “You’re going out because we don’t want you to know what we’re talking about”. I do not understand why the wording from the Local Government Acts has not simply been lifted and put into these regulations. That wording is tried and tested, it works well, and I think that that would have been the sensible thing to do. People will think that we want something to be confidential simply because it is controversial and we do not want them to know what we are talking about.

Secondly, not having an item on the agenda for the meeting so that people do not even know what is being discussed is not local government practice. Under local government practice, the agenda for the meeting will be published and, if it is confidential, it will be in Part 2. The press and the public will be excluded but they will know that the item is going to be discussed. Equally, excluding an item from the minutes begins to make it sound like the meeting of a secret society. Even if the minutes themselves cannot include confidential details, it is possible to write minutes that refer to a confidential item without necessarily prejudicing its confidentiality. It seems to me that the wording in paragraphs 14(2) and 15(2) does not follow good local government practice and, potentially, if the people on the commons council wanted to run it that way it could lead to it being something of a secret society. I am sure that outcome is not intended, but quite often you have to set down rules and regulations clearly and not just rely on the good nature of the people carrying them out.

My next point is about the cost. I suppose that the Minister will say, “Suck it and see”, but what appears to be being said in this documentation is that the initial setting-up costs will be to some extent subsidised by the Government or by Natural England. Can the Minister confirm whether that is the case? The setting-up costs set out here are not inconsiderable, particularly if you are asking ordinary commoners, some of whom may have quite a low-level use of the common, to pay them. On,

“Establishment costs per commoner (one-off)”,

on option 3, which is the supported system that the Government are proposing, it is suggested that:

“For a smaller council, the cost per commoner would be £356. For an ‘umbrella’ council, the cost per commoner would be £294”.

That might not be much money for the Duke of Omnium, or for some other large landowner who happens to own part of a common, but it is a reasonably large amount of money for somebody who is just grazing half a dozen sheep or something like that. On,

“Operating costs per commoner (per annum)”,

it is suggested that “for a smaller council”, it might be £263 per annum, while “for an ‘umbrella’” is £105. It clearly says that the commons councils have to be self-financing, at least after a certain period.

My questions are: first, are the Government intending to subsidise those setting-up costs—at least for the first commons, to see how they go—and if so, how long will it take for that subsidy to fall away and for the commons to have to pay the whole costs? Secondly, have the Government or Natural England done any testing, perhaps in those three first areas, of whether commoners are prepared to pay that and whether it is therefore a viable proposition? Thirdly, what happens if a majority of commoners on a common are quite happy to pay that money but some of them refuse to pay? Will they be excluded from the commons council but still subject to the rules and regulations that it sets out? Exactly how will that work?

My final point is about the elections, not surprisingly. I think that it says, in the draft West Barsetshire order, that the election of those people who have to be elected from a group, perhaps from commoners or from other groups, will be,

“by ballot … at the meeting”.

Given that “ballot” is used, I am probing whether that involves making votes on pieces of paper or whether it can be a show of hands, or whatever. I think that is what is in the model orders.

I am not clear how the election at the first meeting is to take place. Will that be by the secret ballots organised by the returning officer who is appointed by the Secretary of State, will it be by a show of hands, or it is down to how the returning officer feels like doing it at any given time? I assume that if there is an election for more than one person, the commoners—if they have five or six people to elect, for example—will have that number of votes, and if there is a piece of paper that you would be able to vote for that number of people. It does not quite say that, but I am assuming that that is the case. Can the Minister please confirm that? Having asked those detailed questions, I simply reiterate our great welcome for seeing these regulations at last. We wish the enterprise great success.

My Lords, I shall not repeat what my noble friend Lord Taylor of Holbeach said, but I shall pick up on one or two comments. Having taken the Bill through all those years ago—it seems like a long time ago—I do not think that certain issues have been finally cleared up in the regulations.

Any one person can call for a council to be set up. The Explanatory Memorandum says “substantial”, but I think that when we had the debate the Minister said that it was a majority. I am not happy to see the word “substantial” if it should be “majority”. Some commoners may be in favour of a council being set up and others may not be. I would be grateful for clarification on that.

It has been said that Natural England has allocated resources for the first two proposed councils. Is that just for those two? We are all aware of the current crunch on funding. If funding is not available, will the proposed councils be put on hold for the time being or would it be up to the members who want to form that council to find alternative funding?

I should have declared that I am a member of the CLA and the NFU, but we do not have any common ground to declare.

Paragraph 8.2 refers to the widely differing views expressed in Defra’s consultation on costs and benefits. I will be grateful if the Minister will enlarge on what the issues were. The noble Lord, Lord Greaves, raised the issue of what happens when people refuse to pay, which I had intended to ask. As in any society, there will be some people who refuse to pay. Do the others carry the extra burden? Are those who refuse to pay entitled to some of the benefits that that council will bring? An important benefit is the opening of the door to agri-environment schemes. It seems slightly wrong that if people are not prepared to pull their weight and take part in the full sense, they should benefit from other people being willing to do that.

Paragraph 9.2 of the Explanatory Memorandum refers to Natural England publishing guidance in April 2010. That is a very few days away. Is it available? It seems strange that we should be debating these regulations when follow-up information is to be made available to us after the event. It does not seem logical, but some aspects of the way we went about the Bill were not very logical.

Figures for the administrative burdens are given on page 3. They are based on 2005 prices. Have they been upgraded? If so, what difference does that make to the figures we are considering today?

Some agreements in force now are voluntary agreements among associations and seem to be working quite well. Will the Minister update us on how many there are and how many of them have indicated that they would like to become full councils? That would help.

The noble Lord also raised closure procedures, which I wish to raise. I suspect that some councils remain strong, but over time some may wilt on the vine. What review will there be of that? What would that council’s position be?

Page 13 refers to “moderate significance” with regard to significance and benefits. I was quite surprised to see that in the significance rating agri-environment schemes are listed only as moderate. One big thrust behind even considering this issue when the Bill came through was the ability of the commoners to be able to access agri-environment schemes, which they would certainly not have been able to before. It would have been the landlords who were able to do that. I am slightly puzzled why it was put down as only moderately important.

From the briefing from the CLA that I have had—and which I suspect that others have had—I raise two other things. There is obviously a difference in role between the commoner and the landowner. Sometimes the landowner is missing; I expressed my views on that earlier. I think that the councils and the proposals will deal with that well. But sometimes the commoner is involved only in the grazing of the cattle, or whatever else he is holding on the common, so his applying for agri-environment schemes may be looked at in a different way, if he is able to do it, whereas the landowner has to consider the long-term welfare of the environment for biodiversity and everything else, and has to balance that—particularly in moorland areas—with cover for game birds. There is a big issue around management of moors and game birds, and the burning of scrub, for example, which we dealt with when we discussed this in Committee. I have not managed to look in here and find clarification on the issues in which I was interested. Clearly, there could be differing views between the commoner and landowner. I am uncertain in my own mind as to how, even within the commons councils, those diverse issues will be overcome.

Having said that, I welcome this measure. I am sad that it has taken four years, but the benefit is that my noble friend Lord Taylor of Holbeach is now on the Front Bench. I sit proudly behind him, supporting his efforts on this Bill. We went into great detail on what was considered a fairly small Bill at the time, because there are real, practical issues. I am not too convinced, having waded through the Explanatory Notes and having had briefings from other organisations, that we have got it totally right. If we have not, would the Government’s view be to push ahead, or would they have the common sense to delay the authority of this proposal until some of these details have been clarified?

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, and 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 21st 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 be 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.

The opposite, my Lords. Of the councils that the Minister is promising may come into existence fairly soon, at least two—the Lake District and Bodmin Moor—have existing structures and there may be existing voluntary commons councils there. I remember my noble friend Lord Tyler waxing lyrical about his history of helping the commoners and landowners on Bodmin Moor to get things sorted out, and we had the noble Lord from the Lake District—

No, it was the noble Lord, Lord Inglewood. I was remembering his nickname in my head and thought, “You can’t possibly say that”. He waxed lyrical about the Lake District, its commons and some of the land that he owns there, where people are already co-operating well. They are the easy ones, in a sense. Can the Minister tell us how many apart from the three are in an active queue, as it were, waiting to come forward in the next few years?

I am grateful to the noble Lord, Lord Greaves, for shifting us on to that constructive and optimistic perspective. I emphasise that Part 1 of the Commons Act 2006, which provides for updating the commons registers, has been implemented in England in seven pilot local authority areas. To ensure that we can learn fully all the lessons from the pilots, we have decided that the decision on how and when to go ahead with national commitments should await the completion of the pilot period in September 2010. Part 3 of the 2006 Act, which deals with consent for works on common lands, and Sections 16 and 17, which deal with exchanges of common land, were brought into force on 1 October 2007. Responsibility for casework consent was transferred to the Planning Inspectorate at the same time.

We have no plans at present to bring into force Section 50, which provides for updating schemes of regulation made under the Commons Act 1899, but we do not think there was any anxiety about the capacity of Natural England to cope with prospective take-up of commons councils. That answers the noble Lord’s question. We do not expect a flood; he will have recognised that from the tentative figures. Those figures are an estimate of the rate, not a commitment or plan. Remember that we are dealing with a concept that requires the consent of all concerned and a consensus to emerge. It would be presumptuous in the extreme for the Government to lay down figures that have to be reached. If the noble Lord, Lord Greaves, did not assault me for the heavy hand of central government if I did that, I assure him that the noble Lord, Lord Taylor, would not miss that point; he would say that this was all about centralisation. That is not the concept behind this; it has to emerge from local consensual positions. That is the only thing that will work successfully.

As I mentioned, Natural England has explored the potential of the two areas. If there were a surge in demand to establish councils, we would have regard to the probable benefits and costs of each in deciding what resources to allocate. In practice, it is unlikely that a candidate commons council would be encouraged to work up a detailed proposal without resources having been allocated to the project. The noble Lord, Lord Greaves, pressed me a little further on this. We expect resources from Natural England, but it is possible that resources would be available from Defra with regard to the establishment of the councils, against an obvious background that we will not run before we can walk. We do not expect a great deal of running to be necessary, because of the nature of the process by which the councils will be set up.

I emphasise to the noble Lord, Lord Greaves, that we will focus resources on commons where the councils are most likely to deliver our objectives with regard to biodiversity. That does not mean that councils could not be set up elsewhere and meet the criteria, only that priority councils will obviously have first call on resources. They will know the name of the game—that they will have a better chance of acceleration than others if they are able to establish gains in terms of the Government’s broad objectives with regard to issues such as biodiversity. The noble Lord, Lord Greaves—and I think the noble Lord, Lord Taylor—hinted at that, but not with the force that he spoke about the concerns about costs. He knows—we have established—that the estimate of a small council’s set-up costs is about £13,500. I am not minimising that, nor am I exaggerating the resources that might need to be established to take on a few more councils than we expect in the early days. Grant support is potentially available from Defra or Natural England. That support will follow government priorities for rural development. In that respect, the noble Lord’s anxieties need not be taken too far, nor does he need to be concerned about process.

Will the Minister clarify that the setting-up costs of a commons council, if the Government and Natural England approve and support it, will be paid whole or in part from grants from Defra and/or Natural England? Would those grants pay for some of the running costs for the first year or two before the council got under way? Would the council then be on its own?

Those seeking to establish a commons council will know that it will be easier to get access to such support grants if they indicate that they will fulfil benefits consistent with the Government’s overall strategy. Therefore, Defra and Natural England will make the resources available. After the start-up costs have been met, the principle is that a commons council will sustain itself. We will make resources available for start-up, but a council then will run itself. It will do so in a democratic fashion—I hope that the noble Lord, Lord Greaves, did not think for one moment that there would be any expectation other than that the first election of council members would be by ballot. A returning officer would be established, coming probably from the local authority.

We would expect the ballot to set up the council to follow democratic norms. The noble Lord should not be unduly anxious about the council going into secret session—it will not do any of those things. It is not a local authority, with direct responsibility to a wide range of electors. I accept entirely the noble Lord’s unexceptionable principles on how a local authority should act and why the rules should be clearly drawn when the council is engaged in confidential activity. There will not be much with a commons council which remotely approaches that, because it will not be a major employing authority with a disciplinary aspect and all those things which throw up unavoidable issues of confidentiality and require those rules. The commons council will after all be a small, consensual council of people working together. We are indicating only that, if someone has a direct financial interest in what is being discussed by the council, it is necessary that the interest be quantified in a certain way and that the individual concerned has rights. Therefore, I do not think that this is a great issue.

The noble Baroness, Lady Byford, asked whether any person could call for a commons council to be set up. Anyone can ask the Secretary of State to set up a commons council but a request which comes from a person with a legal interest in the common, or a proper representative body of such a person, will carry greater weight than a request from anyone else. However, the Secretary of State cannot set up a council without first being confident that all interests have had the opportunity to express a view and that there is substantial support for it. Without substantial support it would not work. You could not set up a council of this kind without there being that degree of support.

In our discussions when we took the Bill through, we identified “substantial” as being “majority”. I raised the issue because there is a difference between “substantial” and “majority”.

The problem with “majority” is that you will have to identify with the greatest accuracy everyone who has a right to participate and then count the majority. Of course it will be a majority. By definition, you cannot have a consensual concept without there being a majority opinion. I am shying away from the idea that the council will be computed and set up on a 7:5 majority. It cannot be, because that would not look consensual enough. The concept is clearly one in which the Secretary of State must believe that the council will work consensually. In setting up the council, the idea that significant interests could be overwhelmed by the majority vote would destroy the very concept of the council and its work.

I did not say that it should be a 7:5 majority but that is where the reference is on the page; I meant paragraph 7.5 of the Explanatory Memorandum. Forgive me; I feel I have misguided the Minister. I am concerned about the difference between the words “substantial” and “majority”, and I have laboured the point because, if that is what we agreed, it seems silly to back away from it. If I said “7.5” it was a reference, not a majority.

My Lords, I am not being clear enough and I apologise to the noble Baroness. There is a difference between the council being set up as a consensual model and how it operates afterwards, which is what the noble Baroness may be describing. Clearly the council will be in awful trouble if it wins votes by 51 to 49 and works on that principle. Nevertheless, the noble Baroness is right: in certain circumstances it will be a majority decision. However, I think she and I would agree that if there were too many votes of that kind on a consensual council, the concept of the council would be in serious trouble.

There is an element of force behind what happens when someone refuses to pay. If a commoner refuses to pay a levy set by the council, it will be recovered as a civil debt and, until the debt is paid, the defaulter is excluded from being a member of the council, from voting for a member of the council and from participating in the business of the council. That is to be expected. After all, by definition, if they have withdrawn their financial support they have withdrawn their contribution and their right to participate. There is bound to be an element of compulsion in such circumstances, otherwise the concept of the council working and being able to make a levy would be a complete nonsense.

If any aspect of the standard constitution—this is another point about which the noble Baroness was exercised—as set out in the draft regulations is not appropriate to a particular commons council, different provision can be made in the order establishing that council and the special provision will take precedence. We are looking for flexibility. I know that the noble Baroness could be quite fertile in identifying areas where some special dimension needed to be taken into account and, as the noble Lord, Lord Greaves, emphasised, we are looking for an element of flexibility in those terms.

I am grateful to noble Lords for what I had anticipated would be a close examination of the nature of these negotiations. What I have also detected from the contributions is that we all want these commons councils to work, where they are appropriate and where there is a will to get them established. We have a framework that will make that possible, and I look forward to the progress that is made in establishing the commons councils.

Motion agreed.