Environment Bill

Earl of Caithness Excerpts

Committee stage
Wednesday 14th July 2021 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, the House owes the noble Earl, Lord Devon, a great debt of gratitude for bringing to our attention some of the shortcomings of the existing proposals in the Bill, with regard to this whole new concept of property law, as it relates to the land. My initial reading of it was not clear, and I obviously received a brief from the NFU and others. I am grateful to the noble Earl; his amendments are eminently sensible, and I urge the Government to support them.

I will speak at greater length. I welcome back the noble Lord, Lord Cameron of Dillington, to his place—it is good to see him back in person. However, I caution my noble friend the Minister most strongly against accepting this amendment for a number of reasons. I was closely involved with some issues relating to common land, particularly grazing rights on it in the part of North Yorkshire that I represented between 2010 and 2015. The role of graziers there is very important. They are granted rights, again, in perpetuity and have existed for many generations.

There are sometimes tensions with others in the hierarchy of interests, we might say, on common land, particularly with those involved in grouse shooting. I happen to have been brought up very close to two of the best grouse-shooting moors in the country, in Teesdale in County Durham, and I believe that, for the most part, the overgrazing problems, where they exist, have been managed extremely well through voluntary arrangements via stewardship schemes.

The main issue that I have is a potential hidden agenda here that it is very important to put in the public domain, appealing to the best instincts of my friend the noble Baroness, Lady Jones of Moulsecoomb, in this regard. However, we need to see a balance in the countryside, and, among the hierarchy of interests, I place on record my particular concern about the plight of the small family farm. I would place that at the very top of the hierarchy, with grouse shooting and other interests perhaps towards the middle—or, in my case, the lower end. It has become of far greater economic importance than it had 20, 30 or 40 years ago. I pay particular tribute to the work of the NFU and the Tenant Farmers Association in regard to the rights of graziers to graze in perpetuity on common land. I was struck today by, and pay tribute to, the work of the Prince of Wales in this regard. He said today, on the BBC Radio 4 “Today” programme, that we lose them at our peril, and I echo that.

I hope that my noble friend Lady Bloomfield will confirm that there is a role for graziers going forward and that their rights will be protected in perpetuity and will not be at the expense of other, perhaps larger, farming—or, dare I say, shooting—interests in this regard. We should have respect for existing property rights, as defined in relation to land under the Law of Property Act 1925 and other legislation. We should recognise that these rights of commoners go back as far as the Magna Carta of 1215 and the Charter of the Forest of 1217.

I welcome the opportunity that my noble friend Lord Cameron of Dillington— I call him my noble friend because we served together on the EU Environment Sub-Committee—has given us in this regard, but I urge my noble friend to approach this cautiously, particularly as it would potentially shift the balance in the countryside, without even meaning to do so.

[The Earl of Caithness (Con)]

My Lords, the Committee will be extremely grateful to the noble Earl, Lord Devon, for tabling these important amendments. I confess that I have not given them the attention that I should have done, and it is clear that a lot of attention needs to be given to this part of the Bill between now and Report. The fact that we are on the eighth day does not mean that these amendments are any less important than the first amendment on day 1—they need careful scrutiny.

To my friend the noble Baroness, Lady Jones of Moulsecoomb, I say that I am not a landowner, but I was a land agent, and the implications of what the noble Earl said in moving his amendment fill me with some trepidation. He made a perfectly plausible case—it was not extreme—about a situation where a farmer hurriedly enters into a conservation covenant to boost his income at a time of stress, when his basic farm payments system is collapsing and he needs the money. That is not an unlikely scenario in the future, but the consequences of what he does are terrifying for the future because they are in perpetuity and binding on his successors. This could go disastrously wrong for the Government. This is the way that we will improve biodiversity, but, should it get off to a bad start and should some notorious cases hit the press, that will stop any chance of this becoming the full-blown operation that it should.

I have a number of questions for my noble friend on the Front Bench. If this a covenant in perpetuity, a farmer may enter into one on what is at the moment an outlying field but then ceases to be so, given the proposed massive housing development in this country, with the local authority wishing to develop it or use it for amenity purposes, as part of the increased use of that area. As I understand it, it will not be able to do so—but, when it has built houses all around that field, there is absolutely no way that the covenant will be able to be maintained. Is there a way in which this could be changed so that there is more flexibility?

When the noble Earl was talking, I wondered about the case of landlords and tenants. I presume it will be the landlord who enters into the covenant, and with the agreement of the tenant, but that could have serious consequences for the future letting of that land and keeping it in a tenancy. If for any reason the covenant was unable to be fulfilled, no tenant farmer would wish to take on that bit of land again in the future.

It would also affect the price and balance of farmland, because if it goes wrong and the land becomes of little value, it will upset the whole biodiversity and nature balance in that area. If one is talking of a landscape issue—for instance, a valley in the south-west or north-west where the whole area is properly managed but there is a conservation covenant in the middle of it that goes wrong—that could be utterly detrimental. I hope that my noble friend the Minister will reflect on this so that he is absolutely confident that the balance is right for the future.

[Lord Inglewood (Non-Afl) [V]]

My Lords, I wish to speak principally about Amendment 276A, which relates to common land and which I have discussed with the noble Lord, Lord Cameron. The reason for that is that there is a very large amount of common land in the bit of north-west England where I come from, currently known as the county of Cumbria. I should declare that I am president of the Uplands Alliance and I own on my own account a few common rights and a very small area of registered common. I am also a farmer in his late 60s looking into the future.

I begin by reassuring the noble Earl, Lord Devon, that one of the advantages of speaking remotely is that I can, and do, have a copy of Megarry & Wade to hand. I urge your Lordships to take seriously the points that he has raised, because he is talking not merely as somebody who understands the way land works in the real world but as a property lawyer. His indictment of the implications of what is currently in the Bill is significant. There are massive potential problems here, starting with the definition of “responsible body” and going through the saga of how disaster can strike. It is not merely a matter of disaster hitting the particular owners or successors in title of owners of bits of land; it is potentially a disaster for the countryside and the environment as well. For what it is worth, my advice to the Government would be to tear these proposals up, start again and, if necessary, bring them back in another place and we can vote on them again at a later time after a period of reflection. It is not the aspirations behind what is contained in the Bill which are flawed; it is the mechanisms that they put in place to try to bring them about.

As has already been said, common land is a very complicated legal and administrative matter, as the discussions on the most recent Bill to pass through your Lordships’ House, in 2005, show. In that Bill, a balance was struck between a range of interests which do not always see eye to eye. Common land is as legitimate a form of land tenure as the more usual form found across much of lowland England and Wales. While it was at one time more widespread than it is now, it is still an entirely appropriate basis for farming and land management in a number of upland and lowland, particularly wetland, areas of England and Wales. It is not a hangover from feudal England, although its ancestry lies there, nor is it an anachronism in the 21st century. The various rights which exist under it are in legal terms qualitatively no different from those that exist elsewhere in land law. Furthermore—and this is important—it is a cultural phenomenon which is part of the basis of the rationale for the Lake District National Park having been designated as a world heritage site.

I can see what the noble Lord, Lord Cameron, is trying to do, and I have no criticism of it. However, I feel that he has oversimplified some things in a number of ways. Issues relating to conservation and the environment are not the only part of the story; there are other aspects—for example, grazed habitats; cultural landscape, which I have already mentioned; traditional farming systems; rural communities and so on. Furthermore, one thing we can learn from the history of commons is that the interests of the owner of the soil and those of the owner of the common rights are not necessarily the same. Indeed, the interests of different owners of rights, which are not all the same, are in turn not necessarily the same. I must confess that I am not happy that the owner of the soil could gain a kind of advantage over all the other legitimate legal rights involved in it in the way that has been described, particularly in respect of the long-established rights of commons, as mentioned by the noble Baroness, Lady McIntosh of Pickering. It seems to me that if someone involved in common land wants to buy up some other land or rights or soil, they should do so in the ordinary way in the open market.