HC Deb 27 July 1965 vol 717 cc414-22

12.30 a.m.

Mr. Willey

I beg to move Amendment No. 46, Clause 2, in page 11, leave out lines 35 to 37.

These words have a good precedent, but we are obliged to the Law Society for calling our attention to the fact that they might have an unfortunate effect. They pointed out, for instance, that the forecourt to a building containing, say, two fiats each separately owned, half of the forecourt being owned by the owner of each flat, such owners each having the use of the whole forecourt in common, might become common land, as might a private road between two rows of houses, the owner of each house having the ownership of the road fronting his property up to the middle of the road and having the right to use the whole road.

It is for that reason that I move the present Amendment. I should reassure the hon. Member for Gloucestershire, South (Mr. Corfield) that, on the other hand, I have received an assurance from the Commons, Open Spaces and Footpaths Preservation Society, whom we consulted, that they are satisfied with the Amendment.

Mr. Corfield

I must say that I am fascinated, after all that we have heard about the sanctity of Government draftsmanship, that we would have had a situation where the common entrance to a pair of semi-detached houses was a common and must be registered under the Bill, had it not been for a last-minute Amendment resulting from a suggestion by the Law Society. Perhaps the Law Society are the ghosts under the bed, and not myself.

Anyhow, we are very happy to assist the right hon. Gentleman and accept his Amendment.

Amendment agreed to.

Mr. Jopling

I beg to move Amendment No. 47, Clause 22, in page 12, line 9, after "common", insert: mean any rights recognised at common law or by the custom of the country as a right of common and". It is by no means the first time that a similar type of Amendment has been brought in during the course of the Bill's passage through the House. It was first of all debated in another place, it was referred to in this House on Second Reading, and it was the subject of an Amendment in Committee. That was a much more specific Amendment, which I moved, and all the way through the proceedings on the Bill in the House hon. Members on this side have been anxious to try and preserve as many of the rights of common as possible. Some of us have been slightly surprised that at no stage has there been any interest shown in rights of common by members of the Liberal Party, but now, at the fag-end of the passage of the Bill—

Mr. Bessell

I have been present through practically the whole debate this evening, so that attack is quite unjustified.

Mr. Jopling

All I would say is that there are 10 members of the Liberal Party in the House, four of whom represent constituencies where I imagine there are enormous tracts of common land, but not a cheep did we hear from any of them. However, here they are at this late stage making two cheeps for us to put on the record.

To get back to the facts of the Amendment, what we are trying to do now is something that the Minister is anxious to accept himself. When I proposed an Amendment in Committee, he said that he appreciated and shared my view, and that has been the attitude of the Minister throughout the passage of the Bill. The Minister would very much like to specify in greater detail the rights of common involved. It is a shame that we have only very limited rights of common specified in the Bill. The Amendment would make much clearer what rights of common can be included and registered.

12.30 a.m.

I believe that the Minister has been frightened all the way through—I hope he will relent tonight—of specifying in greater detail the rights which may be registered. All the rights which embody the old-fashioned and quaint English words "estover", "pannage" and "turbary" are well known, and they are all recognised at common law. That constitutes the first part of our Amendment.

I know that the Minister is frightened that if one attempts to specify what rights of common are involved one is in danger of leaving some out. But surely any other rights of common which might be left out are included under the heading of "customs of the country". I noticed that in our first debate at this stage my hon. Friend the Member for Gloucestershire, South (Mr. Corfield) used the phrase "a custom of the country", and I noted with interest that the Minister nodded very vigorously. I am sure that the Minister and every other hon. Member is well acquainted with the phrase. It is frequently used. I am sure that it would cover all the problems.

There are many customs of the country where there are local rights of common which the phrase would cover. My hon. Friend the Member for Torrington (Mr. Peter Mills) drew attention in Committee to the right of common of some of his constituents in Dartmoor Prison to take stone from the moor and break it up. I suppose that that would come under the heading "a custom of the country".

I believe that the Amendment would cover all the doubts and worries that the Minister has. It still leaves the rights in respect of cattle gates and beast gates which he particularly wanted included. I think that it would solve his problems. No rights of common could slip through my definition. It is important that we should go as far as possible in specifying rights of common so that people will know what they must try to register. Many people enjoying certain rights of common will not realise that they should register them. If the Government will accept the Amendment, I believe that many people will realise that there are rights which they must register which they would not otherwise do.

Mr. Skeffington

It is not a question of asking the Government to relent. What every hon. Member has to do in this very important constitutional matter is to make certain that by any definition that we put in the Bill we are not taking away from people rights which belong to them and may have belonged to people for hundreds of years. Far from establishing that, the Amendment would very severely curtail common rights which exist.

If the Amendment were accepted, it would define for the purposes of the Bill common rights as rights recognised either at common law or by the custom of the country—whatever that may mean, because there is no possible definition of it and no statutory definition that I can find. We took the view on Second Reading and in Committee that if we attempted to define the Clause by additions or the kind of limitation which the hon. Member suggested we might be robbing large numbers of people of their common rights. The Government do not want to do that, and I am sure that no hon. Member does. It is impossible for us to say that there are not common rights recognised by Statute which are not recognised by common law. If we are asked why the Government cannot say so, the answer is simple. We have not had the chance to search hundreds of Acts of Parliament and perhaps thousands of local Acts. Therefore, it would be wrong at this stage to impose this sort of limitation.

There is an even more fundamental objection. The definition suggested would not cover the kind of rights of common that arise in circumstances where a piece of common ground is exchanged for another. It frequently happens that, under a statute, a public authority requisitions a piece of common land and substitutes for it a piece of ground elsewhere. There may be on the ground substituted rights of common that would not come under this definition. Thus, whole categories of people with common rights would be excluded.

Going even further—and this is no academic lawyers' argument—we should have to ask what is meant by common law. Unfortunately, it has a great many meanings. Although this might be of great interest to legal practitioners because cases which might arise could be limitless in number, this is not something that we want to put in the Bill.

Do we mean by common law the whole body of the law of this country, or common law as it is sometimes defined—the law of the common courts before 1875, the law of the Queen's Bench, the Court of Common Pleas and the Court of Exchequer as opposed to the rules established by courts of equity? Do we mean, by common law, law that is derived from stated cases as opposed to statute law?

This definition is capable of so many meanings that it would lead to hopeless confusion if it was part of the Bill. We included a special category of cattle gates and beast gates and one or two other cases which are generally regarded as rights of common but about which doubts have been expressed. But we have resisted all attempts at limitation either by definition or by trying to include an exhaustive list of all the possibilities.

Mr. Thorpe

Is it not true to say that, because the word "includes" is used in the interpretation Clause, this is a clear statement by the Government that it is not to be taken as an exclusive interpretation? All the Government are doing is to say that the law is as it is at the moment. There are certain things on one or two matters which it is thought might be outside the definition and we are to say that these matters are to be included and taken into account.

Mr. Skeffington

That is the general point about the definition. I developed this point at some length on Second Reading. If we attempted to produce an exhaustive list we should prejudice some people. If we used the definition in this Amendment, whole categories of rights would be left out. Such definition would be extremely complex because no one really knows what is meant by common law.

Mr. Corfield

I accept the explanation of the Parliamentary Secretary. It was not the intention to cut down the rights in any way. It was an attempt to put into the Bill some provision following discussion in Committee, when, I think, we all agreed that not only were we anxious to get the law right but as far as possible to make it clear to the sort of person who is likely to be a commoner without his having to find out whether his rights are being cut down.

Certainly, the words "custom of the country" appear in a number of Agriculture Acts and they have always been possible of interpretation. I am certain that the common law does it. I am also sure that there are common rights created by statute. We are willing to withdraw the Amendment.

Mr. Jopling

This is not the time to dazzle the Government with a thesis about common law and I prefer not to do so. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

12.45 a.m.

Mr. Buck

I beg to move Amendment No. 48, Clause 22, in page 12, line 15, after "Act" to insert or by or under any private trust or settlement". We should like to hear why it is thought necessary that this Amendment should not be made. It was said during the Committee stage that there might be village greens brought about by way of a private trust or settlement. Indeed, there are village greens which have come about in this manner. It would seem right that the definition Clause should provide for that contingency. I could name a possible one in Oxfordshire, and have a statement from a member of the Bar that it is a village green provided by a private trust. Therefore, we think it is necessary to extend "town or village green further than the definition of the land as given in this part of the Bill.

We have put this Amendment down as being one which we think is necessary.

Mr. Skeffington

I am grateful to the hon. Member for Colchester (Mr. Buck) for raising this matter again, because it gives an opportunity to clarify the position. His Amendment would bring in a great number of recreation grounds which have not hitherto been thought of as being village greens because they are used almost exclusively for playing games and sports rather than for the activities mentioned by the hon. Member for Torrington (Mr. Peter Mills).

Village greens and town greens are frequently mentioned in legislation, but have not hitherto been defined. We have in the Bill defined them as pieces of land … for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years". Twenty years is the period which follows precedent as in the Rights of Way Act, 1932, as amended by the National Parks and Access to the Countryside Act, 1949, and we think that this will deal by definition with the normal types of town and village green.

The Amendment would bring in many recreation grounds where organised sports and games were played and these are, of necessity, nearly all held for recreational purposes by charitable trusts, and supervised by the Secretary of State for Education and Science. My right hon. Friend is one of the Charity Commissioners for this purpose and the matter is, therefore, adequately covered. Section 4 of the Open Spaces Act, 1906, states that land can be transferred … to any local authority on such terms as they that is, the trustees and the authority— … may agree, and the local authority shall thenceforth be entitled to hold the same as an open space … This course might be open if there was a degree of community interest and supervision was held to be desirable. I do not think it necessary to bring in all the categories of ground. If they have been used by the inhabitants for twenty years, they will come under the scope of the Bill and be covered in that way. We think that they are adequately covered.

Mr. Buck

I am much obliged to the Parliamentary Secretary. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read.—[Queen's Consent, on behalf of the Crown, the Duchy of Cornwall and the Duchy of Lancaster, signified]

12.50 a.m.

Mr. Willey

I beg to move, That the Bill be now read the Third time.

I am sure that the House, and those who took part in our discussions in the Standing Committee, would wish me to thank the Parliamentary Secretary for the great patience that he has shown in allaying the anxieties of the Opposition. I would also like to thank the hon. Gentleman the Member for Gloucestershire, South (Mr. Corfield) and his colleagues for their pertinacity in endeavouring to improve the Bill. I hope they feel they have had some modest success.

This is the first Measure to implement the Royal Commission's Report. This Bill is limited in its effect. It does no more than set out to establish the facts. I think fiat we all realise that until the facts are established we cannot go on to the second stage, of providing for the better management and improvement of our commons.

The commons are very much part of our national heritage, with 1½ million acres still remaining, and I am certain that the Bill will be the first step in seeing that once again they play a vital part in our national life.

12.52 a.m.

Mr. Corfield

I certainly do not wish to detain the House. I would probably not carry the back benches opposite with me when I say that I and my hon. Friends and, I believe, the right hon. Gentleman and his hon. Friends, have found a certain fascination in this subject, with its very great historical interest, in a way mirroring the whole social development of our country.

This is not an easy Bill to understand. We had assumed that the problems that have arisen could give to considerable difficulties. We have seen the clash between the right hon. Gentleman, supported by a large Government Department, and ourselves, supported by rather more agricultural knowledge than perhaps can be seen among hon. Members opposite. However that may be, I do not think that it has been an entirely uneven argument. I am a little disappointed with the right hon. Gentleman's timidity in accepting drafting improvements on advice that he has not very often been able to amplify in such detail as to enable us to judge its soundness.

However, we are all satisfied that the right hon. Gentleman's intentions are honourable. We hope that they are not leading to the place where the old adage says they go to, and that he will not be daunted by the difficulties in formulating what he wants, or persuading his Parliamentary draftsmen to draft his requirements according to his liking. We wish his enterprise well.

Question put and agreed to.

Bill accordingly read the Third time and passed, with Amendments.