Governance - why is this so important?
There are a number of reasons why it is important to govern commons in an appropriate manner. Here are some of the key reasons:
Use of Public Money
Stewardship / Environmental Schemes are contracts that pay public money to private individuals and businesses for the delivery of benefits to society. It is important that recipients of the money can explain how that money has been well used in the public interest in accordance with the contract.
Equity between parties
Different commoners and other interests such as the owner or sporting rights interest have different types and levels of rights and responsibilities. Some interests are active in their management, others are not. It is important that a fair basis for sharing the funds and delivery of the outcomes is agreed and documented clearly.
Good neighbourhood
Commons depend on good relationships between commoners and the owner working for gathering sheep, shepherding, management of vegetation, delivery of capital works etc. This is known as ‘good neighbourhood’ and over hundreds of years custom and practice has evolved to manage commons. The entry into an environmental agreement can disrupt those customary arrangements. Individuals become more interested in what they can get out of the agreement than how the common and community benefits overall. Clear governance structures provide a mechanism for holding the parties together so that day to day management can continue to be effective and neighbours retain close working relations.
Help you to Keep to the Agreement
If the environmental agreement is not complied with there are consequences. A clear and agreed governance structure and rules set out in an internal agreements provide the framework for collective working so there is a common understanding between all the commoners and the owner of their individual rights and responsibilities. The rules will include the practicalities of livestock management, compliance with a stocking calendar, delivery of outcomes, submission of evidence and management of funds as well as how the Association organises itself and takes decisions.
Managing Change
Most Agreements on commons are for ten years and changes can be expected, a farm may be bought or sold, individuals will die or get divorced and tenancy agreements will change hands. The structure of governance provides a framework for handling these changes.
The other type of change is that the environmental agreement will be for delivering ‘Outcomes’ or ‘Indicators of Success’. If Natural England consider that the agreed management prescriptions are not delivering then they will have the ability to recommend to the RPA that changes to the management prescriptions are made during the life of the agreement. Usually this will involve changes to the stocking calendar but may also include vegetation management such as scrub, cutting and burning.
Managing breaches
It is highly likely at some stage in a ten year scheme there will be some breaches of the scheme rules. The key is having a mechanism to pick these up early and correct them before the breach is significant to result in a formal notification of a breach from Natural England or a financial penaltt from the RPA. The document governing the scheme therefore needs to detail how breaches of the scheme rules are in the first instance addressed by the Association. The primary mechanism will be the ability of the Association to withhold funds from the individual who has breached the agreement.
Protecting parties if disputes arise
If a dispute arises then this may be between the Association and the RPA/NE or it may be between commoners or with the owner. It is important to have a mechanism to resolve any disputes. This will be set out in the governing documents and usually allows for an independent expert to be appointed or the option to go to arbitration.
What happens if financial penalties are imposed by Defra / RPA
If the breach results in the RPA imposing a penalty then the Association will be able to use the internal agreement to require the individual(s) responsible for the breach to meet the costs of the penalty. This may be substantial sum– and in the worst case all funds paid to the Association during the duration of the agreement-though that is very rare.
The challenge is that the RPA often only give a few weeks to pay penalties otherwise they start charging interest. If there are not enough funds in the Association’s bank account this may require the Association to ask each party to contribute back to the Association and then proceedings start against the individual who breached the agreement. The RPA may though be prepared to deduct the penalty from the next payment.