HC Deb 27 July 1965 vol 717 cc399-414
Mr. Scott-Hopkins

I beg to move Amendment No. 39, Clause 17, in page 9, line 23, at the end to insert: (4) Where an objection before a Commons Commissioner relates to a right, not limited by number, to graze animals or animals of any class, and the person who has registered that right relies upon the exercise of that right during any period subsequent to 21st December 1964, and it appears to the Commons Commissioner that the number of animals grazed upon the common in the exercise of such right during any such period substantially exceeds the number habitually grazed in exercise of the same right before 21st December 1964, then, for the purpose of determining the definite number of animals referred to in section 15(1) of this Act, the Commons Commissioner may disregard any evidence of the exercise of the right during any such period subsequent to 21st December 1964. This Amendment goes right back to the debate on Clause 15 and the new Clause which we discussed earlier this evening, because it seems right that one should take precautions to prevent a vast over-stocking which could take place on these farms in order to establish a right, which is going to be so important under the new procedure of quantification, which the right hon. Gentleman is determined to bring in under Clause 15. The words drafted by my hon. and right hon. Friends to be inserted into the Bill say quite clearly that those commoners who have rights on commons and who rely on the exercise of those rights constantly to establish their rights, shall not, after 21st December of last year, be allowed to graze more animals than they had been habitually used to grazing before that period, solely for the purpose of establishing greater rights for the purpose of rights under Clause 15, for quantification purposes.

The Minister will be aware of the exhaustive discussions we had about this in Committee when my right hon. and hon. Friends and myself pointed out to the right hon. Gentleman that it was quite possible that in the circumstances which are now going to prevail, of a final quantification taking place on registration under Clause 15, it was absolutely essential for those commoners who have rights sans nombre to try to establish the maximum amount in order to be able to get this on to the register. It is possible that in the West Country, as in the North and Wales and elsewhere, the ordinary commoner, the ordinary farmer, seeing the provisions of this Bill, and what he has heard about it, will think that the only way he can be certain of getting the best deal possible is to shove as much stock as he can up on to the moors in order to establish his right.

At the moment he has this right of sans nombre, and in his view he can put as much stock on as he likes, as long as he puts some up there and maintains or establishes his right, as he has done in the past—and it could well be that he has not had all that many. Having read the announcements in the Press, and having read the Bill, or having been advised by his legal adviser, it could be that he will try to establish a greater quantity than he has been used to grazing over the past years or months, certainly before 21st December, when the Bill was published.

It is more than probable that a great many people will put a great many types of stock on to these commons to establish for this one purpose. This could happen. There are certainly people in my part of the world, and in other parts too, who could do this. It is a natural consequence of the right hon. Gentleman being so stubborn in refusing to accept the arguments of Clause 15. If he insists on registration before management schemes are brought in, and quantification where rights are sans nombre this increased stocking is the natural corollary. I hope that the right hon. Gentleman is going to be sympathetic and accept this Amendment. Unless he does, the Bill will have a serious effect on the commons, some of which cannot hold or carry much more stock than is there at the moment. It is doubtful whether they can carry as much as is being carried.

A great deal of anxiety has been caused by the existing provision of the Bill, certainly among welfare societies. The Dartmoor Preservation of Wildlife Society has written to me—and I know that it has written to the right hon. Gentleman, because I have had a copy of the correspondence—expressing great fear about what will happen if the existing provisions go through.

11.45 p.m.

I do not pretend that this Amendment deals with all the Society's complaints and those of the other welfare societies—some of them are exaggerated, I admit—but it says that, where a commoner has rights sans nombre for purposes of registration, in assessing the quantification at this stage, the Commissioner should not take into account any amount of stock which is shoved up on to the moors after 21st December last which is in excess of what he used to put up and commonly had done so in periods previous to 21st December, 1964.

This is an eminently reasonable Amendment. It does not stop the commoner putting anything he likes up there, but it says that when the Commons Commissioner is working out the quantification when there is a dispute—as there is bound to be—he shall not bear in mind any excess quantity than was previously put up there. It will make it easier for the Commissioners if the commoner realises that this is so and this is the Minister's intention. This is the right way of going about this. It is making the best of what the Minister has made a very bad job. That is water under the bridge, unfortunately. These are the criteria which we are trying to bring into the Bill to make it work.

Mr. Willey

I appreciate the hon. Gentleman's fears, which he has expressed before, but the Amendment would not be very effective. All it provides is that the Commons Commissioners "may" disregard any evidence of such exercises. That is all. This would not be helpful. The Commons Commissioners may disregard or regard. If the hon. Gentleman had the courage of his convictions, he would have put down an Amendment stronger than this.

Mr. Scott-Hopkins

I do not want to throw these words in the Minister's face, but he made the point time and time again in Committee that he turned his face against directing the Commissioner on anything. In trying to co-operate with the right hon. Gentleman—as we have done throughout—we have used the word "may" rather than "shall". The use of this word would make it have great force on those people who will read, if not our debates, at least the new provisions if the Amendment is accepted.

Mr. Willey

The hon. Gentleman has fallen into the trap which I set for him. I have made it clear throughout that we are concerned with the registration of rights. This is why the hon. Gentleman cannot go further than he has done in the Amendment. If he had used the word "shall", it would have affected rights. If the hon. Gentleman concedes—as he has conceded—that we are concerned with establishing rights, the most he can do is suggest that the Commons Commissioners "may" disregard the stocking of the common.

As he anticipated me by saying, the Commons Commissioner will do his best to establish what are the legal rights. As I said to the hon. Member for Westmorland (Mr. Jopling) we are not putting criteria before the Commons Commissioners. We found it impossible to do so. For this reason also, it would be wrong to put into the Bill something affecting the Commissioner's exercise of his judicial function. This is not acceptable. What one can do, of course—this is different—is to pay regard to the hon. Gentleman's fears. If over-stocking occurs, there are remedies. The remedies ought to be taken.

The best I can do to allay the hon. Member's fears is to say that this is the sort of thing which ought to be discussed at the meetings which I mentioned when we discussed the first new Clause and the Amendments which went with it. The fact that the claims have to be attested will discourage commoners from making exaggerated claims. But when one is concerned with the Commons Commissioners, here are people performing a judicial function and it would be wrong to try to affect them in this way.

Mr. Peter Bessell (Bodmin)

This is not the time to make a long speech or to elaborate anything which has been said so admirably by the hon. Member for Cornwall, North (Mr. Scott-Hopkins). All I would do is to support the hon. Member in his contention. I strongly share his fears about the possible overstocking of the common land as a result of the Bill and, in particular, as a result of Clause 15.

With respect to the Minister, I believe that the wording of the Amendment has much to commend it. He said that in his view it is not possible to give a directive to the Commissioners but one could give guidance to the Commissioners and, if I dare to read the mind of the hon. Member for Cornwall, North, this is probably what he has in mind. This would give guidance and at least express a caution to the Commissioners which would not otherwise exist. This is important not only for the sake of the animals concerned but for the sake of the commoners and for the sake of the land, too. I do not think that it is a matter which can lightly be dismissed, and I am disappointed that we have not had a more satisfactory and more realistic answer from the Minister.

Mr. J. E. B. Hill

I support the Amendment. The Minister appears to think that the Bill compels people to register their rights. In fact, it compels them to register something other than their rights, possibly exceeding their rights; it is the requirement for quantification. Someone having a legal right will feel obliged, if he has to put it in terms of numbers, to graze some cattle in order to justify his argument.

My hon. Friend the Member for Gloucestershire, South (Mr. Corfield) on the first Amendment referred to commoners who have already come together by agreement, informally, and let out the whole of the common to some other body or person to take all the grazing and pay a rent for it. When that situation arises, as it does, for example, at the Outwoods Cow Pasture, Atherstone, the individual commoners still retain their rights, and in that case we have common rights which are held by 180 owners of ancient messuages in the town. Their interests are represented by shares in the monetary income which is obtained from letting arrangements, made and supervised by an official called the piecemaster and a management committee.

But these commoners still have individual rights of common pasture appurtenant to their town dwellings. Under the Bill they cannot just say that they have this common right of pasture appurtenant to their dwellings and let it rest there. Instead of registering the simple fact that the dwelling is a dominant tenement carrying a right of common, they have to go further and prove a definite number of animals. How will they justify their case unless they put up animals as soon as they can to fill out their claims?

It is true that by so doing they may be breaching an informal agreement which they have come to not to exercise their common rights but to take some money in lieu. However, that will not be relevant when they seek to fulfil the requirements of registration. They must show what number of beasts apply to their right of common. I therefore apprehend that some commoners in this sort of situation—not all of them, but certainly some—may wish to get in first and possibly steal a march on their neighbours by placing animals on the common, perhaps resulting in overstocking.

It appears that this could follow in such districts as Ebbw Vale, where the comparatively few genuine farmers there may be deterred, by the high cost of litigation, from objecting to the large numbers of animals which may be placed on common land to build up registration claims by people who are not bona fide commoners. I hope, therefore, that the Amendment will be accepted, for it would give some guidance, and perhaps justification, to a Commons Commissioner wishing to say, "For the purposes of registration I reject the evidence put before me". He cannot say that it is false evidence because presumably the evidence will prove that the animals have been put on the common. If we give a Commissioner the right to say, "I disregard the evidence for these purposes", we may achieve our aim because advance notice of the power to disregard evidence will discourage people from following a course of practice which, although helping to fill out a legal right, will probably be bad husbandry and be bad for the unfortunate animals which are placed on common land to share the insufficient quantity of grazing.

Mr. Scott-Hopkins

I was disappointed at the Minister's answer, particularly since he picked on the word "may" and developed his argument from there. It was wrong for him to do that because we are here dealing solely with commoners who have rights sans nombre.

As my hon. Friend the Member for Norfolk, South (Mr. J. E. B. Hill) explained, the Minister is saying that this is going beyond establishing legal rights. As the right hon. Gentleman recognised when we were discussing an earlier Amendment, we are dealing with commoners who have rights sans nombre, although he is now saying that the Commons Commissioners will quantify them and limit it down, so to speak. I should have thought that in this case it is only right and proper that the sort of provision contained in the Amendment should be included in the Bill.

It would appear that the Minister has no real disagreement with my hon. Friends and I. He picked on the word "may", but in a completely different context, and said that it was not a direction to the Commissioners. We agree. It is not such a direction. It would apply where a common is under-grazed as well. Since it seems, therefore, that the right hon. Gentleman accepts our case in principle, I trust that he will now accept the Amendment.

As we have accepted the terms of Clause 15, and that quantification must unfortunately take place, I hope that the right hon. Gentleman will realise that there is no disagreement between us on the principle of the Amendment. I trust that he will now look sympathetically at our proposal and will accept that its inclusion in the Measure will help to make it a better Bill.

12 m.

Mr. Willey

My difficulty is twofold. First of all, as I have said, we are not giving guidance to the Commons Commissioners and, in the second place, if one considers the qualifications of the Commons Commissioners one appreciates that we can leave it to their good judgment to weigh the evidence, and that is what one ought to do. The commoners will be advised that inflating a claim in this way is not likely to establish a right.

Amendment negatived.

Mr. Buck

I beg to move Amendment ment No. 40, Clause 17, in page 9, line 30, after the first "direction" to insert: provided that any such modifications shall not result in increasing the costs payable by any party above those which would fall to be paid under the aforementioned rules); Subsection (4) deals with the whole subject of costs, and this Amendment gives the Minister an opportunity to explain what is intended in this regard. We have heard that in other matters it is not proposed, for reasons that have been stated, to give directions to the Commissioner as to how he should perform his functions, and we should now like to hear how the Government see the question of costs being dealt with.

Is it envisaged that costs shall, as in ordinary county court cases, follow the outcome of the cause, in so far as it is clear cut? If one claimant is successful in his claim to certain commons rights and the other claimant is not, is it suggested that the costs should automatically follow the successful claim? The subsection reads: A Commons Commissioner may order any party to any proceedings before him to pay to any other party to the proceedings any costs incurred by that party in respect of the proceedings … We should like to have that provision explained. The subsection goes on: and any costs so awarded shall be taxed in the county court according to such of the scales prescribed by county court rules for proceedings in the county court as may be directed by the order … How does the Minister envisage the county court scale being fitted into this type of proceeding before the Commons Commissioners, if a man has lost a claim to have, say, 50 cattle on a particular common? The subsection goes on: but subject to any modifications specified in the direction … Those words were included as a result of an Amendment moved in Committee by the right hon. Gentleman. My hon. Friend the Member for Gloucestershire, South (Mr. Corfield) asked whether they did not give too broad a discretion to the Commissioners to award any sort of costs, and this Amendment seeks to modify that discretion so that the Commissioner cannot give more than the county court scale. He would have discretion up to the county court limits, but not beyond. We think that to be a proper and reasonable limitation of his powers. It would seem to be unusual for the Commissioner to be given almost unfettered power with respect to any modification or direction of county court costs.

In Committee the Minister said that he would consider the point again and that he was concerned about the definition about costs in the Bill and the powers he had conferred on the Commissioner. I shall be interested to hear the results of his consideration, whether he thinks that the Amendment meets the case, or that he proposes to deal with it by regulations or some other means. At the moment the matter is by no means clear.

Mr. J. E. B. Hill

I am concerned about the matter of costs. I am afraid that this is the theme in which my main objection to the Bill keeps recurring because it is applicable to practically every aspect of the Bill.

The requirement to quantify the number of animals at the time of registration must increase the business of the Commissioner. Therefore it must increase the costs of the hearing. If the Commissioner had to decide only on the identity of the claimants, that they had a claim either in respect of their dominant land or through some claim in gross or by deed and so on, these would be all legal issues which can be fairly easily deter-minded; but once he is involved in settling matters which we think are properly matters of management, the amount of time and costs will increase enormously.

I have a further fear. Registration seems to be a matter between one individual and another. The Commissioner should be determining an individual issue but, as we have seen, also if one has to arrive at quantification that can be done only by judging all claims, not on an individual basis but in relation to all other claims. It will therefore be very difficult for the Commissioner to take the individual claims and objections one by one. He will be bound to join them all together and have one general hearing with many individual claimants as parties. This may result in very heavy costs being awarded against one individual who perhaps through no fault of his may have failed to satisfy the Commissioner on one point about which the claimant felt absolute certainty.

If only individual claims were being heard the costs would be limited, but if a great many have to be joined together the penalties could be very great. The necessity for quantifying will cause much joining together which otherwise would be unnecessary. I very much hope that the Minister will not hold out a sort of sanction of penal legal costs as a deterrent to claims, because that may have a very unfortunate effect in deterring some commoners from registering rights when clearly they ought to register them without delay.

Mr. Jeremy Thorpe (Devon, North)

As a lawyer I find it difficult to know which does more damage, and which is more ambiguous in trying to maintain some basic guiding light in the assessment of costs, the Clause as drafted by Her Majesty's Government, or the Amendment put forward by Her Majesty's loyal Opposition.

The only merit at the moment is that the Bill says that costs shall either be referable to the county court scale, or that if no such order be given, thereafter the county court shall make an assessment. I presume that is what the words mean.

Presumably, the object of the Bill is to refer that matter to well-established legal principles. If that be a principle which the Government have taken care to write into the Bill, the county court scale of taxation is subject in well-defined cases to certain exceptions. For example, if there be a case in a county court for breach of copyright, the county courts, as the hon. Member for Colchester (Mr. Buck) with his experience at the Bar will know, not only have the power to give punitive damages, but by the same token, inflated costs. Various other matters are exceptions to the well-laid-down scale of costs. So, if we are talking about exceptions, the county court already has them.

Therefore, the first difficulty in the Clause as drafted is that the Government, having accepted the principle of existing county court procedure as a guiding light, thereafter promptly expresses lack of confidence in it by suggesting that there should be power of defined modification and whatever is said and whatever may have transpired in Committee, this is an unqualified modification in the hands of the Commons Commissioner.

Either it is right to fetter his discretion by saying that assessment of costs shall be on a county court basis or it is not, and I should have thought that one could not have the best of both worlds. It is either the county court scale, or a matter for his discretion. If one is ready to give, him sole discretion, do not let us pretend that we are being respectable in tying it to county court costs, because we are doing no such thing, but using them as a useful guide.

So much for the failure of logic in the Government Clause. Having established a principle, they make such wide exceptions as to destroy the principle almost altogether. The objection to the Opposition is that they say, "Yes, we are in favour of this. We think it is an excellent thing to rely on the persuasive precedent of the county court as far as assessment of costs is concerned. We agree that if no order is given, this is a matter for the county court. We agree there should be power for modification, but only in a downward direction."

They overlook the fact that the county court judge has a discretion. He is bound, save for these exceptional cases, by the scale of costs. There is a ceiling upon what costs a county court judge may give, but there is also a discretion as to how far below that ceiling he will fix the final figure and if that is what the Opposition want to achieve, it is already in the power of the county court and this Amendment is unnecessary, repetitive and totally superfluous. If they are saying that modification shall be downwards only, this already exists. Therefore I would have said, first, that the Government's Clause as drafted breaches the very principle which they seek to perpetuate and, second, that the Opposition are bringing in an Amendment which is not necessary, having regard to the facts.

12. 15 a.m.

Mr. Graham Page

The hon. Member is thinking of a case where it has been before the court and the judge may order an upward or a downward change in the scale. The Amendment envisages the case where the Commons Commissioner directs the scale on which the costs should be taxed. It will not then go before the court. It will go before the registrar for taxing.

Mr. Thorpe

I appreciate the hon. Member's ecclesiastic, almost Freudian slip in this matter. He knows well and as a practising solicitor knows far better than a member of the Bar that the question of taxing involves enormous powers of scaling downwards. The ceiling is established and references in the Clause to county court costs set what the ceiling will be. I am sure that the hon. Member will agree that the power of discretion which the taxing master has, taking the High Court as an example, is to say to himself, "Do we give the full costs, that is to the ceiling beyond which we may not go, or do we exercise our discretion and for certain reasons go far below that ceiling, either because the case was badly prepared or had no merit or because unnecessary expense was caused?" The discretion is downwards.

If that is so, the very object which the Amendment tries to achieve is written into the Government's Clause and therefore the Amendment is superfluous. I should have thought that a far better course would have been not to move an Amendment to effect what is already in the Bill but rather to remind the Government of what would be reasonable to give as costs so as not to hit the county court ceiling in circumstances in which even if someone is successful he is not entitled to recover full costs. One should also ask the Government what they have in mind when they talk about modifications and what are the circumstances in which they can see the present ceiling being hit and overtopped, the scale bursting through the roof and reaching the chimney pots.

This is the question which the Minister should answer. What are the circumstances which he can see where there is litigation, pursuant to the powers in the Bill, in which it would be reasonable for a Commissioner to exercise his discretion to give costs which overtop those laid down normally by the county court. These are the questions which should be asked. This is where the Opposition have failed to ask the relevant questions.

Mr. Buck

One tries to follow the hon. Member's late-night logic with care but one finds it spurious logic because it is clear that a modification could be ordered by the Commissioner in an upward direction. The second point on the logic of the approach is that if the Government are wrong and if the Opposition are wrong in the Amendment, we are entitled to ask where is the Liberal Amendment which is right.

Mr. Thorpe

I am asking the Government for a statement of the facts. I assure the hon. Member that there are no pacts as far as we on the Liberal benches are concerned about dividing the House late at night. There is no question of our saying, "You can send your boys home. We shall not ambush you. The three-line Whip is off, and everything will go through on the nod". On the last Amendment, the hon. Member for Cornwall, North (Mr. Scott-Hopkins) got up to say how dissatisfied he was with the Minister's reply. This is the preamble to all his speeches in Committee and on Report, but there is not a cheep out of him when the Question is put. I warn the hon. Member for Colchester (Mr. Buck) not to go home too early. He may find his views put to the vote.

Will the Minister tell us what is meant by "subject to any modification"? What are the circumstances in which there will be a modification upwards? It is not in point to say that the modifification shall be only downwards. The object of an Opposition is to find out why this provision is here in the first place. In what circumstances should the modification be upward? If the answer is unsatisfactory, it follows that this provision should not be in the Bill at all. The Conservative Opposition are not pressing the Government and probing these questions as one is entitled to expect them to do, even, as the hon. Member for Colchester said, at this late hour.

Mr. Buck

I did not.

Mr. Thorpe

The hon. Gentleman talked about late-night logic and the difficulty he had in following it. If he finds the hour late, I sympathise and I applaud his resilience in staying up.

We are entitled to know in what circumstances the Commissioner would recommend that the well-established costs awardable in the county court should be overtopped so that an unsuccessful applicant would be mulcted of a larger sum of damages than he would be if he were an unsuccessful litigant in the county court. A county court judge is in a far better position to exercise his discretion in these matters than a Commissioner. We must be very careful before giving to someone who is a barrister of seven years standing, however distinguished, greater powers than those which are given to one of Her Majesty's judges.

Mr. Corfield

I am surprised by the lecture on opposition which we have just had from the hon. Member for Devon, North (Mr. Thorpe). In fact, it is he who is not asking the right questions. We raised this matter in Committee, and, no doubt, the hon. Gentleman will spend some of his Summer Recess studying that admirable document, the OFFICIAL REPORT of our proceedings at that stage.

The problem here is that the Government, having adopted the county court scales as a guide, have at the same time indicated that the power to award costs will be a deterrent to the frivolous or unprepared claim. If costs are to be used for that purpose—it is part of their purpose, to some extent—it is right that the subject should know the maximum scale of costs to which he is likely to be put. If there are to be modifications, it is imperative that they be limited to the downward direction.

I disagree entirely with the hon. Member for Devon. North that it would be right to give either a county court judge or a commons commissioner complete discretion to use a higher ceiling than is laid down in the county court rules. This is what I seek to prevent. Through our whole system, we endeavour to produce scales of costs which provide the maximum basis of assessment. If that is the general principle, it is wrong to give a junior judicial officer power to raise those costs at his discretion. This is why we submitted this Amendment. In my view it is both a sensible and a responsible Amendment and very much more so than anything that has come from the Liberal benches tonight.

Mr. Willey

As far as the Opposition are concerned, I should think that we are about right. Hon. Members will recall that Lord Molson, in another place, moved an Amendment that we should make provision for High Court scale of costs. As it is getting rather late I would economise by accepting the argument of the hon. Member for Devon, North (Mr. Thorpe) in disposing of this Amendment. I would say to him that I feel no anxiety so far as he is concerned. I think that he has demolished the Amendment.

This has to be left largely to the discretion of the Commons Commissioner. I do not envisage this being used as a deterrent, but one can think of the complexity of a case, one can think even of the value of the common rights involved, the factors in other words which shall determine the court in exercising such a power. This is a discretion which if exercised is appealable, and I think it is proper that this discretion should be there and I think that it will be properly exercised.

Mr. Buck

Perhaps one can ask why the Minister—

Mr. Deputy-Speaker (Sir Samuel Storey)

Order. The hon. Gentleman has exhausted his right to speak.

Mr. Buck

On a point of order. I considered that having proposed the Amendment I had a right to speak at the end.

Mr. Deputy-Speaker

The hon. Member has not.

Mr. Scott-Hopkins

On a point of order, Mr. Deputy-Speaker, the Ruling has been given several times this evening that if an hon. Member proposed an Amendment he had the right, without asking leave of the House, to reply to the debate.

Mr. Deputy-Speaker

Only if he replies to a new Clause on Report stage.

Mr. Scott-Hopkins

With respect, Mr. Deputy-Speaker, your predecessor did in fact make the point. He called several of my hon. Friends to order when they asked leave of the House to reply to the debate on Amendments they had proposed. He called to order the Parliamentary Secretary, who also sought leave of the House to reply to a debate when he had himself moved the Amendment which initiated the debate. Has not my hon. Friend the right to reply to the short debate we have already had?

Mr. Deputy-Speaker

If that precedent has been established, yes.

Mr. Buck

All I would like to say is that one finds it a little difficult to reconcile what the Minister has said tonight with the doubts he expressed about this Clause in Committee. We have not heard anything about the change in his thought processes which has occurred to make him change his mind.

This is an unusual power of a discretionary character, and that point seems to have been conceded by the Minister, but he now appears to take an entrenched position and to have hardened his attitude.

It seems a pity that we cannot have some assurance about this. The Parliamentary Secretary has not exhausted his right to speak on this matter.

Amendment negatived.