REPEALS (Hansard, 22 July 1977)

§ Mr. Arthur Davidson
I beg to move, That the Bill be now read the Third time.
This is a useful, if hardly revolutionary, Bill which makes some welcome changes in the administration of justice. I welcome it and commend it for Third Reading.

§ Mr. Temple-Morris
I concur with what the Minister has said. These Bills, which are regular features and involve the use of lawyers on both sides of the House, at least give us a chance to discuss many interesting matters. Many would agree that most of our interesting discussions were about matters which do not appear in the Bill. At least the Bill gives us the chance to air matters which are prospective candidates for inclusion in these measures in the future. To that extent, all of us on the Opposition side of the House who have been concerned with the Bill have appreciated the value and the unpolitical, bipartisan and constructive spirit in which it has been carried through all its stages.

§ Mr. Anthony Kershaw (Stroud)
I am happy to join my hon. Friend the 2124 Member for Leominster (Mr. Temple-Morris) and the Minister in welcoming the Bill in the form in which it has arrived. It deals with widely disparate subjects. Therefore, I make no apology and hope that I shall not incur criticism from you, Mr. Deputy Speaker, for referring to only one part of it. If I referred to the whole of it my speech would be long and tedious.
I refer to Clause 23. I was disappointed at the reply of the Minister in Committee when I raised several points connected with Clause 23. I make no attack on the courtesy of the Minister. He dealt with the matter very succinctly. But we were on that occasion up against the question of time and it was not possible for him to give me the kind of reply which he otherwise might have done. Nevertheless, the problem with which we were then dealing could not be fully ventilated, and I therefore now call attention to one or two items related to it. Clause 23 deals with the abolition of traditional courts, with some exceptions. The exceptions are not long enough or broad enough.
In my constituency there are two contiguous commons, Minchinhampton and Rodborough, which are extensive in size, totalling nearly 1,000 acres. For a long time there have been no problems about running them. The Bill now seeks to abolish the manorial courts connected with them just at the time, unfortunately, when the problems connected with running areas such as these have become more serious.
For a long time, since the decline of agriculture in the eighteenth century, there was no particular pressure on the commoners either to exert their rights or to see them enforced. The value of the beasts grazing on the commons was very low. The grazing was not particularly valued by those who had the right to it, and nothing really transpired to cause any difficulty. Now, the situation is utterly transformed, and problems continue to mount. The value of the land in the 1930s was, I suppose, around £5,000, but now, with the rise in the value of land and in the value of grazing, it could be set in a free market at about £500.000. The animals on it, from 700 to 800 beasts of all sorts, are worth perhaps £150,000. The commons have become big business.
2125 As the value of the commons rises to those who have rights on them, so does the threat to them. These comons are surrounded by housing and developments of various sorts. An important main road runs through the middle and there are numerous other roads which are heavily used. The commons are widely used for recreation, with all the attendant difficulties of crowds and motorists. In this case the sort of dangerous litter that is left behind can damage the stock. In order to control the situation we have regulations, which up to now have hardly been challenged. But they are being challenged, for what reason I do not know. I presume that the increased value of the rights is such that people are very keen to obtain them.
For example, cattle and horses are turned out in the winter on the common, which is against the regulations and is very dangerous. Accidents happen, some of them fatal. I was late for my adoption meeting for the General Election of February 1974 because of an accident on the common which held me up and in which, unfortunately, a constituent was killed after running his motor cycle into a horse in the darkness.
As I pointed out in Committee, because of these pressures and because of the desire to improve the grazing which is now so valuable, it will be necessary in the future to fence. Without going into the legal and financial arguments which I deployed in Committee, there are considerable legal and financial problems about fencing. Some kind of organisation to overcome these is necessary, and the manorial court could provide it.
We need now to settle on an enforced new regulation. No fair-minded person can differ from the view that the need exists. Nor could he deny that the manorial court is capable of seeing the regulations enforced. "But", said the Minister in Committee, "your courts are obsolete". It is true that the courts have not met since 1912, but the regulations which were laid down and approved have been enforced ever since and have been observed, until very recently.
For many years there has been no murder in the village in which I live, but I dare say that the crime has not been abolished in that village. In the Isle of Man I understand that there are no 2126 offences of rape. I cannot think why. I dare say that the crime still exists in the Isle of Man. There has been no prosecution for blasphemy for 50 years until the successful prosecution last week. Why is that so? Because the regulations have not been challenged up to now, does the Minister say that they have lost their validity? It is only when they are challenged that we need a court. It is ludicrous to say that because the regulations have not been defied there is no need for them. It is only now that the regulations are being defied that we need the court. No public expense is involved. The whole exercise smells of bureaucratic and unnecessary meddling.
Unfortunately, in sweeping out some of the anomalies, which I agree exist in these courts, useful provisions have been swept out too. Now, the Government are too bureaucratically obstinate to change their mind. What is particularly irritating is an attempt—perhaps I put it too high—by the Lord Chancellor to say that it is all our fault. He wrote to me on 6th July and said: At the conclusion of the preliminary consultations the Law Commission formulated provisional proposals in an explanatory memorandum completed in April 1974, which was widely circulated to everybody who might be affected. That is, on the face of it, completely untrue. How could a memorandum like that be circulated to everyone affected? Certainly that was not done. The letter goes on to say: In addition, notice of the proposals was also given under the heading Manorial Courts' in the Journal of the Commons, Open Spaces and Footpaths Preservation Society for the autumn of 1974". Members of Parliament have a great deal of reading to do, and we read a certain amount of esoteric literature. I very much doubt whether, either in this this House or in many parts of the country, one of the most popular weekend journals is that of the Commons, Open Spaces and Footpaths Preservation Society. It could easily escape attention.
Finally, the letter from the Lord Chancellor says that all should have been made clear by a letter from Mr. Ian Campbell, the Secretary to the Society for Footpaths Preservation, which appeared in the correspondence columns of The Times on 27th December 1974.
2127 I do not know what you were doing on 27th December 1974, Mr. Deputy Speaker —

Mr. Deputy Speaker
I plead not guilty.

§ Mr. Kershaw
Perhaps in Scotland the question would not arise. However, in this country a large number of people would not have been concentrating as much as they should have been on the correspondence columns of The Times, particularly on those matters relating to footpaths, on 27th December, the day after Boxing Day.
It is unfair of the Lord Chancellor to imply that it was due to idleness or lack of attention on the part of those responsible that these courts have been left out of the list. I say that there is a necessity here, a cause which has to be met, and it is a pity that we are not given the tools to do the job.
The Lord Chancellor's letter goes on to say that, although it is not really for him to say, I have no reason to suppose that the ancient courts leet are more effective than the management committees as a means of regulating the use of common land. I would agree with that, provided that everyone else was prepared to go along with that sentiment too. Up to now we have had no difficulty. We arc now experiencing difficulty. There is no doubt that, if someone wishes to say to the voluntary management committee that he does not wish to obey its regulations, the committee has no means of enforcing them. It is a great pity that this has not been conceded.
Under the Bill, the Lord Chancellor may appoint other courts and make regulations for other courts to enforce the regulations which a manorial court would be able to enforce. As we now have no voluntary acquiescence, or not enough, to run these commons properly, I hope that the Lord Chancellor will give his early attention to this question of laying down which courts can enforce the rules agreed upon by the management committee and in what circumstances. I do not know how those regulations will be drawn. Certainly, to enforce them in some kind of court people will be put to 2128 expense, which would not have been the case with a manorial court. Any other court will be more formal, and it might be more difficult to bring such cases before it. This is very much a second-best solution. If the manorial court is not to act, I hope that the Lord Chancellor will see that he makes regulations without delay so that the appropriate court can act.

§ Mr. Arthur Davidson
I feel that I ought to answer one or two of the points that the hon. Member for Stroud (Mr. Kershaw) has raised. He has pursued this matter with great ingenuity and persistence both in Committee and today. He does it with such charm and in such a lyrical and colourful way that I always feel bad about having to turn him down. I cannot offer him any further encouragement today. His proposals are inconsistent with the underlying purpose of the Law Commission's proposals, which, in effect, say that an obsolete court should not be capable of revival. As the hon. Member knows, the Law Commission's object was to abolish the judicial functions of all these ancient courts, useful as they may have been at one stage, but to keep in existence any court performing a useful function. The courts of Minchinhampton and Rodborough, which the hon. Member has in mind, have certainly fallen into disuse, because they have not been used since before the First World War.
If we were to accede to the charms of the hon. Gentleman in this case we would quite clearly be opening up the possibility which the Law Commission's proposals were designed to prevent, of allowing further attempts to be made to revive other ancient courts. Confusion would abound. That would not help with the administration of justice. I praise the hon. Member for raising this matter with such consistency. However, I have to turn him down. I can tell him that the Lord Chancellor will note carefully what he says. His words will not be lost.