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Common Land
Unfinished business Our general secretary, Kate Ashbrook, was a member of the government’s stakeholder working group on common land, which in April 2003 published its report: Agricultural Use and Management of Common Land. Here she explains the report’s main recommendations. The report of the government’s common land stakeholder working group is the beginning of the end of a long process to ensure that our unique commons are protected, managed and enjoyed. This process started with the report of the Royal Commission on Common Land of 1958, with its three main recommendations. These were
as follows.
In their Common Land Policy Statement, July 2002, the Department for Environment, Food and Rural Affairs (Defra) and the National Assembly for Wales left unanswered questions. The main one was how to manage grazing density in the absence of effective mechanisms for controlling this (both under- and overgrazing can threaten the commons’ biodiversity, landscape and well-being). The working group was to make proposals to government which would form the basis of a consultation paper. This is expected in June this year. The group had 33 members from a wide range of interests: commoners, landowners (the Country Land and Business Association got away with having three representatives), farmers, government agencies, national park authorities and amenity groups. There were four meetings in four months. I considered that my role (with other members from non-agricultural bodies) was to ensure that the vital, wider, public interest in commons was reflected in the outcome. In this we succeeded.
The group’s terms of reference were to consider the proposals in the section of the policy statement dealing with agricultural use and management, especially the establishment and operation of statutory commons associations, while taking account of the many interests in commons. The report to government recommends that commoners, owners and others with an interest in a common should be able to establish statutory associations. These would have powers to act on majority resolutions (while protecting the interests of the minority) and make regulations regarding the agricultural use and management of the land (the regulations would be confined to these issues only). The prerequisite would be a ‘live register’ (a database of the common rights exercised, containing fuller and more up-to-date information than the statutory register). The aim was to ensure sustainable management of common land. By this the group meant, in the rather formal wording of the 1986 Common Land Forum report, ‘continuation of the exercise of commoners’ and owners’ rights; the maintenance of the common and the promotion of proper standards of livestock husbandry thereon; the conservation and enhancement of the natural beauty of the common and access to it by persons for the purpose of quiet enjoyment’.
The statutory commons associations would not supersede existing, non-statutory associations that are working well. The statutory associations would be particularly valuable where a minority of graziers is prejudicing the economic and environmental sustainability of farming by fellow graziers, for example by refusing to enter into an environmentally-sensitive area (ESA) agreement for better management of the common. The new statutory powers would be limited to the exercise of common rights. Membership of the associations should include, by right, all holders of grazing rights, landowners, the owners’ tenants using the common for grazing, and those with sporting rights. Voting on proposed regulations affecting the agricultural management of the common should be limited to active graziers, ie those identified on the ‘live register’. Regulations, which would need government approval, would be enforceable on all commoners. The associations would need to conform to prescribed rules in the conduct of their business. Their annual general meetings would be open to the public. The working group was concerned that, if left to act unfettered, some statutory associations could try to use their new powers against the wider public interest. Thus there should be a national body (similar in composition to the working party), to advise the secretary of state or the assembly on generic issues relating to the management of common land.
Good practice Its functions could include the promotion of good practice, involvement in designing government policies and programmes which affect commons, and providing a simple means by which government could consult on common-land matters. In addition, statutory regional advisory bodies should be established in England (with a separate structure in Wales), to advise the secretary of state or assembly on whether to confirm regulations put forward by commons associations, and on the use of reserve powers. They would have an oversight of the management of all commons and their associations within the region. Commons associations would be required to consult their regional advisory body at an early stage on any statutory resolutions or management measures likely to affect the wider public interest, and should have regard to any advice given. The working group recognised (some members more than others) that the special qualities of common land merit special protection. The group considered that the secretary of state and the assembly should take reserve powers to intervene in the unsustainable agricultural use of common land. For instance, they could issue a management scheme with measures for the conservation or enhancement of the common.
Deteriorating If agreement could not be reached and the common was deteriorating, the secretary of state or assembly should be able to serve a management notice. If the notice was not complied with they could intervene (eg by removing and detaining stock) and recover the costs. The last resort would logically be compulsory purchase of the common—but the group fought shy of this, all except your general secretary, who voted for it. The government is already committed to prohibiting the severance of rights of common from the holding to which they are attached (following the House of Lords case, Bettison v Langton [2002] 1 AC 27, which confirmed that severance was legal). The working group agreed that the leasing and lending of rights of common should also be prohibited since that militated against good management of the land. The group was divided on whether common rights which can no longer be exercised should be extinguished. Many of us opposed extinguishment, principally on two grounds. Extinguishment makes it easier to deregister the common. However, that threat could disappear if the government abolishes the deregistration of common land following the extinguishment of rights, as it has promised to do.
We now await the government’s consultation paper on the working party’s proposals, after which there may be legislation. As we explained in Open Space (autumn 02 p3), there is much in the original policy statement which we oppose and the society has a crucial job to get the legislation right.
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