§ (1) Where a right of common consists of or includes a right to graze animals or animals of any class it shall be registered for the purposes of this Act as either—
- (a) appendant, appurtenant or otherwise attached to a dominant tenement the location, address and acreage of which shall also be registered for this purpose; or
- (b) held in gross by the claimant whose name and address shall also be registered.
§ (2) Any application for the registration of a right limited by number or class of animal shall state the number of animals to be entered in the register or, as the case may be, the numbers of animals of different classes to be so entered.336
§ (3) Where a right of common consists of or includes a right to graze animals or animals of any particular class or classes, limited by the number or class of animals to be grazed, it shall for the purposes of registration under this Act be treated as exercisable in relation to no more animals or animals of a class than that number or class or classes; and shall, when the registration has become final, be exercisable accordingly.
§ (4) Where a right of common consists of or includes a right to graze animals or animals of any class or classes, not limited by number or class of animals, it shall for the purposes of registration under this Act be treated as exercisable in relation to the needs of either—
- (a) the dominant tenement to which the right is appendant, appurtenant or otherwise attached whose location, address and acreage are registered under subsection (1) of this section; or
- (b) the owner of the right in gross lying in express grant under deed as specified in that deed; or established or establishable under the fiction of a Lost Modern Grant or other common law principle.—[Mr. Corfield.]
§ Brought up, and read the First time.
§ 8.44 p.m.
§ Mr. Deputy-Speaker (Sir Samuel Storey)
The following Amendments have been selected to be taken with the new Clause: Amendment No. 33, in page 7, line 43, leave out Clause 15; Amendment No. 34, in Clause 15, page 7, line 45, leave out from "shall" to end of Clause, and insert:be registered in such manner as the Minister by regulations may prescribe".337 Amendment No. 41, in Clause 19, page 10, line 31, at end insert:(g) for requiring an application for registration of rights of common attached to any land to specify the location and acreage thereof.I understand that it would be for the convenience of the House if we also discussed Amendment No. 19, in Clause 10, page 6, line 16, at end insert:Provided that where a right of common consists of, or includes, a right not limited by number, to graze animals or animals of any class, any definite number of such animals registered in accordance with section 15(1) of this Act may be varied either by any subsequent scheme of management devised with the consent of the person registered as the owner of the land (whether under this Act, or under the Land Registration Acts 1925 or 1936), and of all persons in whose name rights of common over that land are registered under this Act; or as Parliament may hereafter determine.and Government Amendments Nos. 32, 35, and 36.
§ Mr. Corfield
This new Clause and one of our Amendments are designed to overcome the main difference of principle—perhaps even the only difference of principle—which divided us in the Standing Committee. The other Opposition Amendments—Nos. 33, 34 and 19—merely represent alternative methods of meeting our objections, so I think that we can very conveniently discuss them all together.
The principle on which we are divided is embodied in Clause 15 which requires, in effect, that all rights of common for grazing which are not limited by number—and which in the old Norman French are always known as rights sans nombre—shall, for purposes of registration, be quantified and registered as rights to graze a definite and specific number of beasts. By virtue of Clause 10, once the registration becomes final the register becomes conclusive evidence of a right to graze that number, and that number only.
As we see it, there are a number of objections to this principle. The first, and perhaps the least important—more a technical objection and, as some might say, a legalistic one—is one that the Government Amendments mentioned are designed to meet. However, this is not the most important objection. On the contrary, I think that the practical objections to which I shall refer later are the most fundamental.
338 For a definition of the rights sans nombre, one turns to page 276 of the Royal Commission Report which defines sans nombre:Literally 'without number'; applied to right of common of pasture appurtenant or in gross if the right exists for an unspecified number of animals. In the case of common appurtenant sans nombre the principle of levancy and couchancy is held to apply; in the case of common in gross sans nombre the right is limited to as many cattle as the common will maintain over and above the levant and couchant cattle of the lord and commoners.I think it is clear—although I shall not quote further—from Cheshire's "Modern Law of Property" that a right of common gross can exist if created by deed, although not by prescription, for an unlimited, number of animals over and above the numbers for which rights existed, for limited numbers depending, of course, on the carrying capacity of the common.
The principle of levancy and conchancy implies that the numbers must be limited in accord with the wintering capacity of the holding. In the old days they were confined to the type of stock which were required either to work the holding or to manure it. In providing for the registration and determination of these rights, one comes up against two difficulties. The first is that the principle of levancy and conchancy can have very little relevance to any form of modern farming. The second is that where we are dealing with rights in gross not attached to any particular holding there is by definition no dominant holding in relation to the numbers which can be assessed. So, in actual practice, one is up against the determination of the actual numbers of cattle or other species of stock on the basis of the carrying capacity of the common. Of course, if there are a number of rights established with definite numbers of cattle attached, it would be relevant to the surplus carrying capacity over and above that of the particular common.
Looking forward to the second stage of the operation which the Royal Commission, the Government and ourselves contemplate, it will be accepted that one of the main purposes of the operation, anyway as regards commons which are predominantly agricultural in their use and value, is usefully to increase the productivity of those commons, in other 339 words, to increase the carrying capacity. It follows that if any specific number of cattle is to be determined under the Bill it will have to be based on the current carrying capacity of the common. Therefore, if the whole operation on which we are embarking is to make any sense at all it can be only a temporary number.
On the face of it, we have the situation in the Bill in which we are inviting commoners to register rights with a view to their becoming established when the registration has become final as absolute and permanent rights, although we all know that the whole object of the exercise is that they should be neither absolute nor permanent. That, as I put it in Committee, is bogus in an Act of Parliament. I do not use that in any derogatory sense towards the Minister or the Parliamentary Secretary, but it is the result that the Clause produces as it is at present drafted.
As I understand it, this is what the Minister seeks to put right by Amendments Nos. 32, 35 and 36. Clause 13, as amended by Amendment No. 32, would make paragraph (c) read:any rights registered under this Act are apportioned, extinguished or released varied or transferred in such circumstances as may be prescribed.That deals with the power to alter the register where that is appropriate. So we start with the proposition that the Minister accepts that there may be variations and alterations of the register to meet them to the full under Clause 13 as amended.
The Minister goes on to amend Clause 15 to make it clear that Parliament expects to have something to say on the subject at some future date. That is all right as far as it goes, except that I would query the drafting, in that it gives the impression that the right hon. Gentleman contemplates that Parliament will concern itself with the actual numbers on any particular common. I cannot believe that that is what he contemplates Parliament will do. It will merely set up machinery by which some other body can devise management schemes under which these numbers can be varied, either for all time or from time to time as the carrying capacity of the common varies.
340 I must admit that that criticism applies, though I think to a lesser extent, to one of the alternatives we have tabled, namely, Amendment No. 19, which is an Amendment to Clause 10. That follows somewhat similar lines to those of the Minister's. I like to think that it perhaps inspired the Minister rather than that he inspired me, but that is as it may be. Our Amendment allows for a variation to be made with the consent of all the commoners of a common and the owner of the land, if he is ascertainable, either under this Measure or under the Land Registration Acts.
Even on this narrow point, our Amendment has a very substantial advantage, because I am sure that we all want to see commoners get together before the second stage if they are disposed to do so. We should make it clear that if they are disposed to do so, there is nothing in the Bill to prevent them from getting together and varying the numbers, if this is appropriate in relation to the management scheme which they propose to devise. I therefore hope that the Minister will consider this alternative seriously. It is very much on the same principle as his own. At the same time it goes that little bit wider and is that much more valuable, if only because it encourages the co-operation without which we shall not make a real success of this legislation, either this stage or the next.
As I said earlier, all this deals only with the technical or legalistic objection to the Clause as it stands. To our way of thinking, it is the practical objections that are the most fundamental and the most damaging. Put very shortly—I know that my hon. Friend the Member for Norfolk, South (Mr. J. E. B. Hill) will wish to go into this in more detail, if he catches your eye, Mr. Deputy-Speaker—the requirement that all these rights need to be quantified seems to us to raise the following practical difficulties. First, this implies that, whether a particular common has had any form of stinting arrangement up to now or not, some form of stinting will have to be devised, though this is the fundamental of the second stage of this operation.
There are a large number of commons which have never had any stinting and where the commoners are wholly unfamiliar with the process. It becomes more and more clear, as some of the 341 evidence of the Nuffield Research Unit at Cambridge is studied, that this is by no means a simple and straightforward operation. Indeed, in some commons it can be a very complex one. In any case, it is very much the function of the management scheme stage, to which we look forward after five or six years, or some such period. I submit that it is wholly outside the proper function of the Commons Commissioner established under this Measure who, after all, is basically there, as I see it, to adjudicate on legal rights. As I understand it, this is the reason why he has to be a lawyer of so many years' standing.
The second objection is that there are a number of commons which suffer, not from being over-grazed but from being under-grazed. If one were to limit the exercise of some of these common rights, which are at present without number, one would not only be doing no good but one might well be doing something which was positively harmful. This is a powerful argument for rethinking the approach to this matter.
First, there are a number of commons where the commoners have got together not with a view to exercising their own rights but to let those rights, usually to one farmer, leaving the whole management to that farmer to cultivate it to the maximum benefit in accordance with the general policy of his dominant holding. The commoners, therefore, are interested only in collecting and distributing the rent among themselves. In that sort of instance, it clearly would be inappropriate to attempt a stinting operation at this stage, since there is clearly a manager running the common as a single unit and the commoners may not only be uninterested in stinting but wholly uninterested in achieving a result which will have no bearing on the prosperity of the common in which they are interested.
We realise that this is a difficult matter and that is why we have tried to offer the right hon. Gentleman a number of choices. Although we have had disagreements on principle and drafting in Committee, I think we would all agree that the right hon. Gentleman has shown himself anxious to get a good answer out of this machinery when it is established. I hope that he will accept it as a compliment that in one of our Amendments we 342 are prepared to leave it to him to provide regulations because this will give him more time to consider this difficult matter and to consult experts, whether research units, agricultural executive committees or Commons Preservation Society people, or whoever it may be. It will also give him time to prepare a scheme which will provide, if necessary, different alternatives for different types of commons. This is the purpose of our Amendment to Clause 15, leaving it as a short Clause and leaving the registration of these rights to be provided for by regulations.
As for the new Clause, our approach has been rather different. It has been to try to give detailed guidance to the registration authorities on the registration of each main type of common right. In subsection (1,a) we are making clear that whether a right is appurtenant or appendant, the dominant tenement, in particular, should form part of the registration, and here new Clause No. 1 overlaps Amendment No. 41 which gives the Minister power to make regulations for the same purpose.
In subsections (2) and (3) we provide for some guidance where a right of common relates to a common which has a limited number attached to it. In subsection (4) we are dealing with rights unlimited by number and here we suggest that those rights should be registered and exercised either in relation to the dominant tenement, if there be one, or where there is right in gross—whereby definition there is no dominant tenement—in relation to the owner of that particular right, leaving it to the management in the final stage to define the numbers and, if necessary, to make special arrangements for the seasonal changes on the common, and so on.
Of our three main efforts to meet this problem, we prefer, in the circumstances, either Amendment No. 19 or Amendment No. 34, largely because both would allow time to work out a more satisfactory scheme. The first would enable the commoners themselves to do something in the meantime, and the second would allow the Minister to produce some sort of machinery which, I hope would—I am sure that it would—allow for an encourage alteration by consent where this led to an interim management 343 scheme or a management scheme which might well be confirmed as permanent.
I put the new Clause bottom of the list, but, again, I prefer it very much to the Minister's two little Amendments which do not go far enough, although they meet the technical point.
§ Mr. Deputy-Speaker
Before calling the next speaker, I should add to the group of Amendments which we are considering at the same time the Amendment to Amendment No. 19.
§ Mr. J. E. B. Hill (Norfolk, South)
The controversy which has arisen on this point is unusual in the sense that it has absolutely no political content at all. Both Government and Opposition have been concerned solely to produce an effective Bill and one which, broadly, implements the recommendations of the Royal Commission. At first sight, the argument about quantification seems to be an obscure and minor matter, but, as one digs into it, one realises that it is much more complicated and more central to the successful operation of the Bill. It has gradually revealed itself as, so to speak, the key test of the Bill's practicability.
At the moment, it is largely a matter of chance and history whether a grazing common is stinted or not. We derive some idea of the extent of this problem from paragraph 73 of the Royal Commission's Report, where it is stated that 79 per cent. of the common land in England and Wales is grazing, 33 per cent. being stinted—that is approximately 500,000 acres, and there is no problem about registering those grazing rights—and 46 per cent. being unstinted, that is, grazing without any definite number of animals attached to the right, and this latter area comes to nearly 700,000 acres. It is a sizeable problem, and the success of the registration process must largely depend upon the statutory requirements being clear, easy to comply with, and likely to inspire both confidence and action.
The Government, in a commendable desire to expedite this procedure—they have done it successfully in regard to registration periods and so on—are here calling for a precise definition at a stage when the claimant cannot know it and, indeed, cannot be expected to know it. 344 In this respect, the Bill goes outside the recommendations of the Royal Commission, which, looking at the problem in great detail, recognised the impossibility of claimants giving any precise definition at this stage.
The key paragraph is worth quoting again. It is paragraph No. 275:The impossibility of making an objective definition leaves only one alternative—to allow the commoner in his claim to rights of common of pasture to define them himself; in other words, to allow him to claim whatever he believes he is entitled to. If our recommendation is accepted, we do not think that in practice it will work badly. In most places, the commoners will settle their individual claims by discussion before registering them, some in their present associations or manor courts, the others in all probability by getting together informally in the parish hall or bar parlour.My only criticism of that paragraph is that I personally think that agreement is unlikely to be reached informally prior to registration. It is more probable that people will try to register, and that agreement will be reached only when one considers all the details that are involved at a much later stage.
I would say that the subsequent survey into the management problems that are likely to arise in commons, which has been carried out by the Nuffield Foundation and Cambridge University and which includes several members of the Royal Commission, has confirmed my view. They are quite certain in their view that defining numbers at the stage of registration is not merely going to be difficult but is going to give rise to serious trouble. The basic reason for it is that where quantification exists, in the vast majority of cases it has come about only as a result of some stinting arrangements, and that any such arrangements are essentially a complex process of assessing and reconciling both the supply of grazing on the one hand and the demand for it on the other and coming to an agreement on a co-operative and not an individual basis.
In Standing Committee we examined an old stinting arrangement of the late nineteenth century, and we were all surprised to find what a large number of factors were involved. Until those factors were determined, it was quite impossible for anyone to arrive at any quantification of numbers, whatever his authortiy in the matter. Therefore, without repeating the 345 details of that argument, I am quite certain that quantification must be the result and, indeed, is the natural result of management and never of registration, and still less of adjudication by a commons commissioner.
The most that registration can be expected to do is to identify the commoners and their claims of rights, plus the property in respect of which those rights may be based or the other titles on which they may be based. If we succeed in doing that, we shall have all the ingredients on which to work out a later quantification and stinting programme. It seems, therefore, that registration needs to be comprehensive, but I do not think it can be precise. If at the registration stage we try to do more, several practical difficulties must be expected, and that has been confirmed, as I have said, by the detailed examination of several hundred commons that has been going on for the last four years by the Nuffield Foundation investigation.
Several difficulties will be apparent. As I have said, stinting has always been a very complicated process. It cannot bee simplified or speeded up because it depends on many factors which can be evaluated in deail only on the ground and in respect of a particular common—such as, what is the area of grazing which will be available, during what times, and what claims are there to be upon it? It is no easier to work out a stinting programme today than it was a century ago. If anything, it has become much more difficult because the techniques of agriculture are much more complicated and the potential non-agricultural, non-grazing usage and commitments of the common are more varied and probably more extensive.
It seems to me that it is quite impossible for an individual commoner thinking of registration to have any idea of how to express his right, which may have been exercised almost from time immemorial by him and his forebears on the holding, in terms of definite numbers. Since the publication of the Bill anxiety on this point has been expressed in many areas. I merely mention the Commoners of Millburn Forest in the North and the Gower Common Association in Wales, and similar difficulties are known to obtain on Dartmoor and on Bodmin Moor.
346 The second difficulty in practice is that stinting amounts to an act of enclosure in that in many cases it will replace the old manorial customs, and it requires, therefore, general agreement among all the commoners, who previously relied upon custom, to accept the new and exact regulation of the commons and the manorial wastes, and that, of course, would include, where one has a lord of the manor, dealing with the residue of grazing right and manorial right which remains in the enjoyment of the lord of the manor after the use made of them by individual commoners. Therefore, how can any individual claimant work out that sum at the moment of registration?
Thirdly, modern husbandry practices make old stocking customs quite unrealistic. So I think that in practice the use to which any right can be put must depend on the consensus among commoners at the time of management later on and far beyond the time when individual claims would be determined by a Commons Commissioner.
Mere quantification of numbers as suggested by Clause 15 would in practice cause chaos, because numbers by themselves have very little practical value. They have to be accompanied by express conditions about the types of animal which can be grazed in the alternative, details of areas that can be grazed, grazing seasons, and so on, all of which are matters of management and cannot be within the knowledge or jurisdiction of a Commons Commissioner.
We have very good examples of modern stinting formulas which have been worked out. There is one by the National Trust at Rodburgh Common in Gloucestershire. One need only examine the position to realise that this is essentially something that can he arrived at only after the most detailed study. If one has a stinting programme it is not much use and is not meaningful unless there is some form of oversight and enforcement procedure. In modern times, for instance, there is the effective procedure at Allendale Common in Northumberland. We can see the need for enforcement procedure at Bollihope in County Durham. If we register numbers, even if this is not the intention of the Bill, it will be taken by many commoners as indicating and conferring some definite legal rights to certain fixed 347 numbers when registration has become final. It may well be that, in many cases, later management schemes would have to cut down on such registered numbers simply because the carrying capacity of the common would be far less than the numbers claimed.
§ 9.15 p.m.
§ Mr. Hill
I see the hon. Member for Pontypool (Mr. Abse) nodding his head and I think that I only have to mention Ebbw Vale for him to realise the astonishing excessive numbers at the moment being carried and claimed in respect of very small areas. Therefore, if any fraction of these numbers were registered, there would almost certainly in any subsequent management scheme have to be severe reductions. That would surely at least give rise to a great deal of complaint and even claims for compensation for expropriation.
Then there are the other areas of hill country—again, I think, in Wales and the Pennines. Here, there are long chains of unstinted commons running across county boundaries. Grazing animals are no respecters of county boundaries and wander across them at leisure. It will be very difficult and certainly unjust unless relative quantification can be kept in step where an area crosses the boundaries between one local authority and another. This cannot be achieved unless and until there has been a comprehensive survey of the whole of each area of common and until there has been obtained the consent of all the commoners on each and every common to one comprehensive common standard. That would be wholly outside the jurisdiction and capacity of the commons commissioners acting within separate county boundaries.
As registration is not in itself any evidence of legal title, we should then be in a worse position than at present because commoners would be uncertain of their legal standing although they would have to register fixed numbers. That kind of uncertainty, if created by compulsory quantification, could only be resolved by a later stinting scheme. As I have said, the biggest objection is that stinting arrangements can be reached only 348 by allocating the resources of the common and regulating their use, and before one can assess the resources or carrying capacity there are a number of factors that must be taken into account.
It is a long list. There is the control of public access. There is nature conservation, which may eliminate certain grazing rights. Certain portions of the common may be sold or leased. There is the question of archaeological preservation, and the very important question of fencing or gating—because, if a common is fenced, it may greatly increase its carrying capacity. There is the question whether any part of the common may be subject to arable cultivation; the question of the state and scale of grassland husbandry of the common, and forestry and silviculture. There is even the question of the control of gypsies, and of water supplies, and scrub control. If there is not effective scrub control the grazing will be reduced; conversely, if there is control, it may be extended.
Then there is the question of the degree of public access, in the form of games or sports, such as horse riding, golf and other organised games, together with camping. Some or all of those factors are bound to occur on most commons, and until it is known what effect they have on the carrying capacity of the common it is impossible to decide upon a class or the sum that must be arrived at before any numbers can be decided.
I have wearied the House by indicating some of the practical difficulties. I assure hon. Members that these are not idle fears. They all exist today, and can be seen. They will at once become apparent if this quantification at the registration stage is insisted upon.
We believe that it is not essential to press for this decision and that it would be far better to concentrate on the registration of claims in respect of all the dominant land upon which many claims are based. There is nothing original in this. That was an essential first stage in the traditional stinting award—but it was only the first stage. Our suggested Amendments are in the alternative. The new Clause spells out the detail required for comprehensive registration, and if still more flexibility is desired—and I would prefer that—Amendment No. 34 gives the Minister power to prescribe what matters should be registered.
349 I would much prefer to see him have those admittedly wide powers, because we are agreed on the common objective, and if he can wait a little before specifying exactly what is to be registered he will probably have the advantage of being able to study the forthcoming Cambridge University and Nuffield Report, which will amount to a vade mecum of the management of commons and will make quite clear what are the indispensable matters to insist upon for registration, and what matters are best avoided.
§ The Minister of Land and Natural Resources (Mr. Frederick Willey)
The House is greatly indebted to the hon. Member for Norfolk, South (Mr. J. E. B. Hill) and his hon. Friends for the efforts that they have made to solve a very difficult problem. The hon. Member talks about a controversy. I do not regard it as a controversy. We recognise the difficulty. I have tried hard to arrive at a solution which might be more acceptable.
The difficulties were clearly brought out by the speech which the hon. Member for Norfolk, South has just made because, as I emphasised in Standing Committee, what we are trying to do—I hoped that this would be agreed between us—is to establish the legal rights of the commoners. It may well be that in many cases when we have established those rights we will face difficulties. As I emphasised in Committee, and I emphasise it again, I think that these are ancient rights which ought to be recognised, and our endeavours, as far as registration goes, should be to register those rights as accurately as we can.
The hon. Gentleman talked about public access to common, nature conservation of the common, archeological preservation, husbandry, forestry, water, even gypsies and camping. These are not matters which should qualify and determine the legal rights of commoners. It may be that when we consider management these are matters which we should consider. What I am anxious to do, and I have been trying very hard to carry hon. Members opposite with me on this, is to consider these things, recognising the established rights of the commoners as accurately and as definitely as we can establish them. Here there is the difficulty that the records of manorial courts, 350 since the abolition of copyhold tenure, are hard to come by and we are faced with a difficult problem. We have the Commons Commissioners and they have to discharge this obligation as best they can.
The Royal Commission was faced with this difficulty and we are following its recommendation. When we talk about the importance of being definite one of the things that I emphasise is that, if we are to consider a scheme of management, it is important to know the relative rights of those who have rights in the common
§ Mr. Corfield
The thing that worries me is that, as I understand, it is quite possible to have a legal right in gross for a number of cattle, unlimited in number. Where I think the cases in the old books have proved that this is not possible is only when an attempt is made to establish this by prescription. Where the origin of the right can be proved as a grant it is possible. Therefore, I think that the right hon. Gentleman is not registering rights that exist, but he may in some cases be cutting down rights by putting a number on something which is, perfectly legitimately, unlimited.
§ Mr. Willey
I would just make two points. First, rights are definite if we establish them. On the second practical issue, which is important, I think that if he looks forward and anticipates schemes of management—and one has to determine the relative rights of commoners on the common—the only way this can really be done is by having definition. That is a point which we considered in another context, when we discussed whether there should be a provisional register. If we had a provisional register we would have to move to a definite register at a later stage. I think that that was merely putting off a decision which would have to be taken if we are to tackle this problem.
I recognise that the new Clause has some disadvantages, which the hon. Gentleman for Gloucestershire, South (Mr. Corfield) anticipated. I would mention only two. I think that it would only add confusion if we introduce "appendant, appurtenant" into the definition. I agree with the Royal Commission about this; it would not make things any easier and would serve no useful purpose. The main criticism of the Clause is that it 351 goes on to give "needs" as the criterion and one difficulty is that there is no definition of needs. It would be very difficult for a Commons Commissioner to apply this criterion. The other difficulty is that we should be changing the law by defining the rights as determined by needs. A very simple illustration would be a prescriptive right. For this reason, I hope that the hon. Gentleman will not press the New Clause. It would mean a practical difficulty, that there is no definition of needs and it would mean a substantial change of the law which, I am sure, the hon. Gentleman would not wish to pursue.
The hon. Member said that he had a particular preference for Amendment No. 34. The difficulty there is that it would merely leave it to regulations. I have found out that if this were left to regulations they would have to provide as we already provide in Clause 15. In other words, the regulations would empower me only to do what I feel I must do in the present Clause 15. We have to be definite and certain about this. We cannot start commons registration unless this is defined and certain. Once the process is begun, we could not alter the criterion.
Therefore, this does not meet our difficulty—we have to decide on quantification—because I should have to decide and, having decided, we could not change the criteria or the process during registration. Amendment No. 41 also refers to regulations. This would give me no powers which I do not have at present. For this reason, I do not think that it would help. It might cause some difficulty about the powers at present in the Bill. Amendment No. 19 was the second preference of the hon. Gentleman. I had a good deal of sympathy with this. We are now trying to meet the point which the hon. Gentleman made in Standing Committee that there is the appearance of finality. Yet the whole discussion, particularly the contribution of the hon. Member for Norfolk, South, has made it clear that this will be subject to adjustment, that there will be schemes of management and improvement.
There is a drafting difficulty over the Amendment. I do not know whether the hon. Gentleman appreciates that the 352 result of his Amendment would be that any variation would require the consent of all those who held rights in common, so that a person with a right of piscary would have to give his consent to a variation in rights of grazing. I do not think that the hon. Member expected that that would be the effect. This is the point on which I have tried to meet him and have failed. That is why I am advised that the effect of the Amendment might be to restrict the rights which commoners at present have in contract to vary their rights of common.
This is a very real difficulty, which I will explain when I come to the Government Amendments. I concede at once to the hon. Gentleman the initiative in this respect. I do not claim to have anticipated him, but I was anxious to see what he might propose. I was sympathetic towards this and still wish to meet him as far as I can.
There were difficulties with the hon. Member's Amendment. First, it was so drawn that the consent of those who had rights other than grazing rights would have been necessary to variation. Secondly, I am advised that the Amendment would have had the effect of limiting the rights which commoners have to vary their rights of contract. I put down an Amendment to Clause 13 to make it quite clear that we are providing for variation of rights of common. I agree that this does not make it very clear to whoever studies the Bill that we intend to make it clear in Clause 13 that there will be variation.
In the further Amendments to Clause 15 I have been able to meet the point which the hon. Member made in Standing Committee that, as in Clause 1, we should make it clear that although we are providing for a definition of those rights, Parliament intends to carry out the recommendations of the Royal Commission and there will be legislation which will provide for the variation of the rights which are quantified under Clause 15. That is straightforward. What I have not been able to do is to meet the point which the hon. Member makes in his own Amendment that these rights can also be varied by agreement or in other ways by the commoners themselves.
My difficulty has been that which I pointed out on his own Amendment—that I have been advised that the various 353 efforts which we have made to meet this point have been unsuccessful and we have not been able to produce a form of words which would not possibly limit these rights and—
§ Mr. Corfield
The right hon. Gentleman is saying that there may be, by custom of the country, a means by which this can be done which, if it does not happen to be by mutual consent of all those concerned, we should be cutting it out by his words.
§ Mr. Willey
I am obliged to the hon. Member. That is the difficulty which we face. What I have done is to take his Amendment No. 19, and to try to improve it by Amendment. But I have failed. I then put down two Amendments in Clause 13 particularly to call attention to the fact that these rights can be varied because I recognised that under the Amendment which I have made to Clause 15 it is unsafe to try to do this because we might be at serious risk of prejudicing some of those with rights of common who may wish to vary their rights.
May I tell hon. Members of the other steps which I will take? By publicty we shall try to make this as clear as we can. We intend with the co-operation of the Ministry of Agriculture, Fisheries and Food to take the professional staff of the Agricultural Land Service and to hold meetings which will be informal and informative of the commoners so that we may have fruitful discussions between the commoners and there can be an opportunity to give general advice and guidance to assist the commoners in proceeding to registration.
The hon. Member realises that we have discussed this matter before. I hope that he will agree that while I have not been able to accept that quantification should be avoided, I have tried as successfully as I can—not as successfully as I should have wished—to meet his point that we should make clear that although we are quantifying the right under Clause 15, this is not final and Parliament will be proceeding in due course to further legislation on the commons which will provide for the management and the improvement of the commons.
§ Mr. Peter Mills (Torrington)
I will delay the House for only a few moments 354 to issue a word of warning to the Minister now that the Bill has begun to be understood—now that its meaning is percolating down, as it were—because the problem of quantification is indeed a thorny one. Now that the implications of the Measure have percolated down to the local branches of the N.F.U. and the commoners' associations, grave concern, to say the least, is being caused.
Several people have asked me what will happen once the Bill become law. "Do the Government really realise the difficulty and muddle there will be?", I have been asked. I therefore pass this warning on to the Minister because there is mounting anxiety about the difficulties associated with quantification at this first stage rather than at the second. The Minister must realise that he has been warned about the difficulties and problems—warned not merely by me but by many of my hon. Friends in Committee, by many important people outside Parliament and by the N.F.U.
§ Mr. Willey
It might help if I tell the hon. Gentleman at this point in his remarks that we have had further discussions with the N.F.U., and I think that its members now concede that what we are doing represents the best way of tackling this problem.
§ Mr. Mills
The right hon. Gentleman may have that impression, but that is not the case from the point of view of the Devon branch of the N.F.U. I appreciate that the members there may be a little difficult, but I assure the right hon. Gentleman that what he says is not so in their case. They are indeed worried about the real problem which exists, remembering that a large tract of Devon—and, I believe, of Cornwall too—is affected by the proposals. I assure the Minister, therefore, that there is still grave concern.
Just to specify numbers of animals without management entering into the matter—with all that that means, although I will not go into that subject again now—will cause considerable trouble, some chaos and may even sabotage the whole Bill. That would be a great pity, so I now warn the Minister about these problems. I do not think that he has settled these issues yet, certainly not to the satisfaction of the Devon branch of the N.F.U.
355 I welcome the news that the Ministry of Agriculture, Fisheries and Food and its officers are to help to solve this difficulty. Nevertheless, we must realise that the problem is not so much the farmers, who more or less know what they stock on the moors and commons. The Minister has still not answered the question which I posed in Committee about the problem of the claims which will come from people outside the farming world and who, I am sure, will be registered. I hope that the Minister will now answer that question.
§ Mr. James Scott-Hopkins (Cornwall, North)
I thank the Minister for the way in which he has dealt with the Opposition new Clause and the obvious effort which he, the Joint Parliamentary Secretary and their officials have made in trying to meet the points which my hon. Friends put in Committee and during the intervening period. I am grateful to the right hon. Gentleman for his approach to the matter because he has adopted a kind and sympathetic attitude.
I agree with the right hon. Gentleman that no political controversy is involved in this issue. Both sides of the House are trying to achieve the same object, which is to get the right type of machinery to secure properly managed commons as a result of the passage of the Bill. What controversy there is has arisen over the method by which this may be achieved.
In the debate today we have had some extremely good discussion and fresh ground has been broken. My hon. Friends have not merely repeated the points they made in Committee. At that stage we had an exhaustive debate on the various merits and demerits of the proposals before us and tonight we have heard some further excellent speeches. My hon. Friend the Member for Norfolk, South (Mr. J. E. B. Hill) made an excellent speech on the problems which will face the Minister if he persists in the attitude he has adopted. The Minister's mellow tone makes it quite obvious that he intends to persist in it.
I accept the right hon. Gentleman's point about lack of definition making it possible for the new Clause to be interpreted as an attempt to change the law, 356 but I do not think that he has met our points on the other Amendments. I might mention, in passing, that in connection with Amendment No. 41 the right hon. Gentleman said that he already had these powers. I take his word for that, of course, but I should like to be told where they exist.
Our other two Amendments perhaps represent our first and second preferences. The Minister turned down the idea of taking the powers suggested, because he said that they were already there. I disagree, as I think it is necessary for him to meet the points made by my hon. Friends and, in particular, the argument of my hon. Friend the Member for Torrington (Mr. Peter Mills). There would be no need for him to take the suggested action straight away; the methods to be used could be put off until the second stage.
In my constituency in Cornwall there is quite an extensive amount of commons. The commoners as such, and the farmers as such, will find great difficulty in quantifying their existing rights. I do not say that it cannot be done—it can be done, and the Minister has said that it will have to be done later in any case—but it will put the Commons Commissioners, who will have to decide the issue, in an impossible position, and put the commoners in an extremely difficult position when they do not know whether a common on which they may now have rights will be fenced or enclosed, or what type or kind of management there will be. They will not know whether they should put in for this or that amount of stint.
This is a very important point because, as the Minister said, registration under Clause 10, if accepted after the time allowed, will be as final as possible, with the exception of the variations embodied in the Minister's own Amendments. It will be as final as may be, with very little likelihood of increase. That means that registration of rights that up to now have been sans nombre will be of great importance but extremely difficult to achieve. The commoner, and the Commissioners at a later date, will be put in a very difficult position.
I therefore ask the right hon. Gentleman to look once again at our Amendment No. 34 in Clause 15, which would 357 give the Minister the right to make regulations prescribing the way in which this should be done. I am sure that it is the right way to go about things, and if the right hon. Gentleman agreed, it would give the necessary breathing space by which these registrations could be gathered together, and a comprehensive picture obtained before quantification in anything like finality took place.
The Minister's method goes a long way towards meeting our case about the variableness of the registration, but the registration is not final, and those who register must not be under any impression that it is. If they were given that impression and at a later stage under the management then taking place their rights were reduced, they could well be in a position to ask for compensation. As it is, with the Minister's Amendment, that position would not arise. It seems a very cumbersome way of going about things, particularly the last line of Amendment No. 36:or such other number or numbers as Parliament may hereafter determine.I take it that the Minister has taken what advice he can and that this is the only way in which this can be done. The right hon. Gentleman did not answer my hon. Friend the Member for Gloucestershire, South (Mr. Corfield) who asked if this means that, for each and every new common, Parliament has to make a decision and the Minister has to lay an order. I do not think the Minister wants to have to do that or that he wants to have to make regulatory powers.
While the Minister has gone an appreciable way—and I thank him for doing so and for the courtesy with which he has done so—towards meeting the case we have put forward on variableness in Amendments Nos. 35 and 36, he has not gone far enough. Although we accept his argument about our new Clause, I hope he will look again at the point made by Amendment No. 34. That is the correct way of dealing with the problem. If the matter is left as it is it will cause a great deal of difficulty and expense to commoners and a great deal of difficulty and trouble for the Commons Commissioners and for the right hon. Gentleman himself if he is still in a position to administer the law.
I ask the right hon. Gentleman to think again about Amendment No. 34 as I 358 believe that it is the correct way of dealing with this thorny problem. We are all trying to achieve the same end. This is not a political controversy. I am certain that if this were done in the way we suggest we should achieve what the right hon. Gentleman and we are trying to do.
§ Mr. Michael Jopling (Westmorland)
We ought to have some clarification about one point which arises. The House is in serious difficulty over the question of how quantification is to be done. There is a difference between this side of the House and hon. Members opposite about how much dispute there will be over claims put in by commoners. We think that there will be many disputes, while the Minister thinks that there will be very few. It is beyond argument that some disputes will certainly arise and that some people—perhaps few, perhaps many—will put in excessive claims where there are rights of this sort, sans nombre, and a great deal of time and expense will be taken up by disputes being heard by the Commissioners.
We cannot seriously consider what the Minister is proposing unless we know on what basis disputes about quantification are to be settled. That is the whole basis of this part of the Bill. I earnestly ask the Minister to tell us on what basis, agriculturally, these grazing rights are to be settled. I am very disturbed that the Minister has not seen fit to involve the Minister of Agriculture, Fisheries and Food in the various debates that we have had on the Bill. This is on his own shoulders. If he feels that he can manage without that Minister that is fair enough, but he must be prepared to answer these questions which are so important. He must say what he means by quantification and how disputes will be settled from an agricultural point of view.
There are two extreme possibilities. First, in relation to sheep grazing, are the sheep numbers to be settled on the basis of present usage? If this is done, it will be unfair to commoners who for a variety of reasons are not at the moment using their rights. That is the one extreme. At the other extreme, will the sheep numbers be assessed by giving equal rights to all those who have rights to graze sans nombre on the common? If this is done, clearly it will be unfair to present users of the common.
359 This is the basis of the difficulty. I do not think that we can proceed with the Bill, unless the Minister tells us how the present difficulty of quantification will be sorted out. After the matter had been raised in Committee, the Minister drew attention to a letter which he had received from the Cumberland and North Westmorland Branch of the National Farmers' Union. It was a most helpful letter. The Minister was kind enough to quote it. The letter drew attention to the difficulty which I have pointed out tonight. However, the Minister did not go any way towards explaining how the difficulty will be overcome. He has skated round this very serious problem throughout the proceedings on the Bill.
We must have an answer to this tonight. If the Minister will not answer this point, and will not explain how quantification is to be worked out, he must tell us why he is not prepared to do this, because he has shirked this responsibility throughout the proceedings on the Bill. The choice is clear. The Minister must tell us how it will be worked out, or, if he refuses to do this, he must tell us why he refuses, because we must have this answer.
§ Sir Henry Studholme (Tavistock)
There is one point with regard to the horrible word "quantification", registering the number of animals that any commoner is allowed to pasture. I am not a lawyer. I would like the Minister to repeat something which I understood him to say. I hope that he will repeat it in simple language so that farmers and others concerned can understand it. I understood him to say that the number of animals registered at the first stage under Clause 15 will not be hard and fast but may very well have to be altered in the second stage. Is that clear? Is that what the Minister means? If it is not, farmers and commoners will think that they have been defrauded if in the second stage the numbers they have registered have to be reduced.
§ Mr. Willey
I am sorry that I did not reply to the point about my own Amendment to Clause 15. I am advised that that is not the effect. It merely indicates that Parliament may provide. It does not mean that Parliament would provide in the case of each individual common.
§ Mr. Scott-Hopkins
What does the Minister mean by that? Does he mean that there will have to be Orders, Statutory Regulations, or a Bill? I have a suspicion that it means that a Bill will be necessary for each and every common.
§ Mr. Willey
It would have to be a Bill, but it would not necessarily be a Bill for each common. I have used the words previously used in Clause 1. I take the point that I took before: it is offensive to anticipate what Parliament may do. We have gone as far as we can go in anticipating that Parliament may do something. What we were anxious to do was to meet the Opposition in making it as clear as we could that whatever is established by registration is liable to be affected by subsequent legislation providing for the management and improvement of commons.
On his question about criteria I cannot satisfy the hon. Gentleman. We saw the difficulties of trying to define criteria when we discussed the new Clause. I cannot satisfy him because the Commissioners have to establish the rights according to the law. I remember saying in Standing Committee that in the sort of case he had in mind that probably the Commissioner would need an assessor.
§ It being Ten o'clock, the debate stood adjourned.
That the Proceedings on Government Business may be entered upon and proceeded with at this day's Sitting at any hour, though opposed.—[Mr. George Rogers.]
§ Question again proposed, That the Clause be read a Second time.
§ Mr. Willey
This is an extraordinarily complex and difficult subject but one has to pay regard to local custom and rights and one may well have in such cases as the hon. Member referred to in Committee a reference to an assessor to help the Commissioner in giving a decision.
§ Mr. Jopling
How is an assessor to begin to know how to do this? There is no law which says how one reduces rights to a specified number. The law is of no help to an assessor. I know many agricultural valuers, and my father was one. These would be the sort of people who would be the assessors but one can have one agricultural valuer saying one thing 361 and another saying something entirely different. Unless the Minister gives a lead the assessor will be absolutely lost.
§ Mr. Willey
This is the one thing that I cannot do. If I appoint a Commissioner to establish the rights according to the law—and this is the dialogue which we have had in Committee—I cannot advise him to pay attention to considerations which ought not properly to affect him. This is the difficulty, because the manorial courts have gone.
As to the question of disuse, a right is not necessarily lost by disuse. Again it will be for the Commissioner to decide whether the right is established notwithstanding disuse. I cannot accept the proposal made by hon. Members opposite because, as I have said, in all honesty if I accepted it I would then have to bring in immediately a regulation to the effect of Clause 15. I must do this for the good reason that we are holding meetings to explain these matters and having explanatory publicity. It is important that we should be as definite as we can be so that the explanation can be understood. It would be very difficult if this matter were left open and the Ministry had to explain at meetings which we may hold that the position may be one way or another.
We have had the difficulty that these matters have been discussed in the light of a provisional register, but there are no Amendments before us suggesting that we should have a provisional register. This is a final register. We have a timetable and I have been pressed again and again to be as expeditious as I can. If we had regulations we would have to define in the sense of Clause 15 and once we defined we could not go back. The proposal now put to us would introduce not only an element of uncertainty but also possibly an element of unfairness.
§ Mr. Deputy-Speaker (Dr. Horace King)
The hon. Gentleman moved the Second Reading of the new Clause. He does not need the leave of the House to speak again.
§ Mr. Corfield
I am obliged, Mr. Deputy-Speaker.
What concerns me is that the Minister is saying, in effect, that he must establish legal rights. As I understand, it is quite possible to have a legal right without limit. I quote now from Cheshire, page 495:In the case of a common in gross, there is no objection in principle to the existence of pasture without stint, in other words the right to put an unlimited number of cattle on the servient tenement because, as it is not appurtenant to anything, there is no dominant tenement with reference to the needs of which the content of the rights must be apportioned.He goes on to quote a judicial statement and sums up in this way:Such an unstinted right might no doubt be granted expressly by deed, but it cannot be prescribed for.I think that the Minister is contradicting himself when he says that he must not alter the law, because that is precisely what he is doing. If he is insisting that every right, sans nombre, must be registered with a specific number, he is altering the law in respect of these particular rights in gross which do exist with an unlimited number attached to them.
I suggest to him that there really is a strong case, particularly following what was said by my hon. Friend the Member for Westmorland (Mr. Jopling), for at least giving himself the opportunity to prescribe in regulations—even if this would be additional only to the powers he wants to take under Clause 15—for specific types of right, and there may indeed be special categories of common for which provision should be made. The right hon. Gentleman says that he does not wish to do anything to alter the law which might cut down anybody's rights. As I understand, if one insists upon putting a definite number on all these rights—which may well be legitimate in respect of some of them, particularly those which are either appurtenant or appendant—that will entail a cutting down of rights in respect of those which are in gross.
I appeal to the right hon. Gentleman again to think hard and consult before we actually come to the Amendment. I confess that this new Clause is not the most satisfactory of all the methods we have, and I suggest that Amendment No. 34 is by far the most satisfactory way of 363 proceeding, whether compared with our other efforts or with the Minister's. I ask him to try to meet us on Amendment No. 34, but, in the meantime, I beg to ask leave to withdraw the Motion.
§ Motion and Clause, by leave, withdrawn.