A new dawn for commons management?

Julia Aglionby, of H&H Bowe looks at the long-awaited Commons Bill draft which is currently passing through the House of Lords.

After years of waiting the government has published the Commons Bill in draft. It is currently passing through the House of Lords where it will be debated in October. There are several changes proposed that will affect the management of Common Land.

1. When common rights are sold they will have to be sold with the land to which they are attached. They will no longer be able to be severed and held in gross. (Those not attached to land can remain unattached to land)

2. If land is sold in lots the common rights attached to the land will have to be divided pro-rata according to area.

3. It is proposed that common rights will only be able to be leased to another farmer for a maximum of a two year period unless let together with the land to which they are attached.

4. Statutory Commons Associations can be formed for the sustainable agricultural management of the common. These can have various functions and powers including;
a. binding all commoners to enter an agri-environment schemes even if a minority of commoners do not agree,
b. requiring commoners to provide information to enable live registers to be kept,
c. removing and disposing of livestock grazing illegally

The first three changes above are backdated till June 28th 2005 so any sales or leases after that date, even though the bill is not law need to take account of the proposed law.

Concern has been raised that such a strict ban on severance will not benefit the agricultural management of commons. For instance if a farm were sold in lots the common rights would have to be split up among the various parcels of land making the flock no longer a viable unit. Those who are not hill farmers are buying more and more land and there is a serious worry rights will fall into disuse. The problem is exacerbated by the restriction on leases being limited to 2 years. What hill farmer would spend time building up a hefted flock with only two years security?

An amendment to the bill has been put forward by Lord Inglewood (formerly MEP for Cumbria and an active peer) that would enable rights to be split from land to which they were attached if they were to be sold to someone who was already an owner of common rights on that register.

The Federation of Cumbrian Commoners is also seeking amendment that would enable rights to be leased separately from the land to which they are attached for up to ten years.

With regard Commons Associations it is not clear who will fund their formation or the enforcement of management prescriptions. Commons have in recent years worked on a basis of consensus rather than enforcement of law. The old manorial courts are no longer existence and it is important that whatever measures of enforcement are not to costly or time consuming to be of practical relevance. What is unclear is whether commoners will be prepared to take formal action against their neighbours?

Income from agri-environment schemes is becoming more and more important on farms as the Single Farm Payment is introduced. Commons will only be able to access these funds if they can provide the necessary assurances to Defra that they can meet the prescriptions set out.

A commons association with powers will be an important part of the package in providing those assurances. As ever though a self-enforcing system will be the most successful and in drafting a model constitution Defra need to keep this in mind.

The Commons Bill provides an opportunity for strengthening the management of a system of land management that is central to Cumbrian hill farming.

There are considerable non agricultural lobby groups who are keen to muscle in on the action, steps need to be taken to ensure the Bill that is enacted enables farmers to be effective managers through balancing the value of property rights with a workable system of communal management.

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