Defra has made an order to establish the Bodmin Moor Commons Council (The Bodmin Moor Commons Council Establishment Order 2015). The order follows consultation, launched in February 2015, on a draft order. You can see the consultation paper, the draft order, and the outcome of the consultation, on gov.uk. For more about the order and the background, see my earlier blog on the draft order, and the explanatory memorandum.
In deciding to make the order following the consultation, the Secretary of State must be satisfied that there is substantial support for it, having particular regard to responses from those (such as commoners and landowners) with a legal interest in the land. It seems that there is little doubt about that, for 202 responses were received, of which 96% were in favour; of those 166 respondents who demonstrated a legal interest, again 96% were in favour. This is a remarkable response rate for a highly focused consultation, although we are not told, and perhaps no-one yet quite knows, how many persons are entitled to exercise rights of common on the Bodmin Moor commons, and therefore what proportion expressed support.
The Bodmin Moor Commons Council will be the second council to be set up under Part 2 of the Commons Act 2006, although the third council in England (the Dartmoor Commoners’ Council was established under a local Act, the Dartmoor Commons Act 1985). The council comprises 24 to 26 members, most of whom are elected by the active or inactive commoners with rights of common exercisable over the Bodmin Moor commons. Further council members are appointed by the landowners, and there is a power to co-opt up to two further members. There is an initial electoral process between the coming into force date of 1 September 2015, and the date of 1 March 2016 on which the council is established, so that the council’s membership is fully constituted by the latter date. The council will have powers to manage the grazing, vegetation and rights of common on the Bodmin Moor commons, and its most potent tool for this purpose is a power to make rules, or byelaws: for example, a rule may prohibit the turning out of animals by a person without a right to do so, and therefore attempt to tackle grazing by farmers with no rights of common (or those who are exceeding their rights) — although the grazier will first have to be identified. Breach of a rule may be made a criminal offence: for this reason, such rules must first be approved by the Secretary of State.
The order as made has been slightly amended from the version on which consultation took place (whereas an affirmative resolution order laid in draft before Parliament cannot be amended after approval by Parliament, it seems there must be some flexibility to amend the consultation draft, and it would be odd if the Secretary of State could not respond to any comments made during the consultation, other than to withdraw the order and begin again). Some minor errors relating to the provision numbering and duplicate register units have been addressed. More significantly, whereas the draft contained no provision about regulations under the Commons Act 1908, art.11 now abolishes any such regulations. The 1908 Act enabled committees of commoners to be elected to make such regulations to control the turning out of entire animals, and there is some evidence that regulations were indeed made in relation to some of the Bodmin Moor commons. However, PannageMan understands that evidence for the precise form of any regulations still in force was elusive, despite a search of National Archives files (see for example MAF 235/201), and art.11 therefore has general effect in revoking any extant regulations, rather than, as would be usual, revoking specific regulations.
No modification has been made to the order in respect of para.13 of Sch.2, by which the owners of the Bodmin Moor commons are still required to act in unison in appointing their four representatives, So there remains no provision for a situation in which the owners cannot agree on a slate of four appointees.
The council will come into existence on 1 March 2016, after the initial electoral process has been concluded, and will then be free to embark on bringing new management to the Bodmin Moor commons, for the first time since manorial management structures faded away over a century ago, and 20 years after the Bodmin Moor Commons Bill was presented to Parliament seeking similar powers through primary legislation.