§ Mr. Kevin Barron (Rother Valley)I am pleased to have the opportunity to bring to the House the issue concerning the ownership of Maltby far and low common. The Department of the Environment is deciding whether to allow a limitation order to limit access to freedom of air and exercise for commoners in the village, who have enjoyed that right for perhaps 500 years.
The limitation order was introduced by section 193 of the Law of Property Act 1925. There was a public inquiry in Maltby from 30 November to 3 December 1982 and I was one of the objectors. I had no idea that I should speak on the outcome of the inquiry as the hon. Member who represents Maltby. Many months later I was selected to fight the Rother Valley constituency, which I am proud to represent.
My stance has not changed. The first planning application to Rotherham metropolitan borough council was made by the Earl of Scarbrough for part of a golf course. The original plan was to use 38.5 acres of the 52.5 acres of Maltby far and low common. It was clear that the application was unlikely to be accepted as the site is one of special scientific interest and has been designated by a Yorkshire naturalists' trust as one where no buildings can be erected and to which people do not have the right of air and exercise, as would be normal on common land. The revised plan on which the inquiry was held proposed that 16.5 acres be taken from Malby far and low common to complete a golf course to be run by Sandbeck Golf and Country Club Ltd., a private company composed of a few business men. The idea was that the Earl of Scarbrough should use parts of Maltby common to complete an 18-hole golf course.
Another golf course is needed in my constituency. I earnestly hope that one will be built in that area, as it would provide a facility for my constituents and people in surrounding constituencies. But I object to the idea that the Earl of Scarbrough should take 16.5 acres from Maltby common to complete his golf course, when he has right of access to between 2,000 to 3,000 acres of land which he owns. The 20,000 inhabitants of Maltby have the right to use 114 acres in total for air and exercise, and even that amount is restricted because some of it comprises sports grounds owned by collieries and local authorities.
Although the limitation order affects only two commons, Maltby common is one of four and comprises about 76 acres. For that reason, 16.5 acres of this land should not be handed over to Sandbeck Golf and Country Club Ltd., by the Earl of Scarbrough and taken away from the people of Maltby.
I have sought this debate to discuss the specific question of ownership. I do not intend to go into detail about the limitation order, or into the many aspects of the report of the inspector, a solicitor appointed by the Department of the Environment to carry out the public inquiry. However, some aspects are important. The public inquiry was originally held in Maltby civic centre, but within minutes it was realised that the room could not hold the number of people wishing to attend. As a result, it was suspended for several hours and re-opened in the Methodist church hall, which could hold a sizeable audience.
The question of ownership was raised early in the proceedings and, indeed, had been raised publicly on 511 numerous occasions. The issue was whether the Earl of Scarbrough owned Maltby far and low commons. He claimed ownership on the basis that they were manorial wastelands, and that as lord of the manor of Maltby he owned them.
At that time, the inquiry inspector accepted that claim, and in paragraph 152 of his report he talked about specific evidence to show whether the Earl of Scarbrough was the owner. He commented on the tithe commutation agreement of 1839, and said there was some doubt about who was the lord of the manor when an Earl Fitzwilliam had signed the tithe commutation agreement. He said he could not believe that if it was incorrect that the Earl of Scarbrough was lord of the manor.
it would not have been challenged immediately by the rightful Lord, whoever he might be".Straight away the inspector jumped to an assumption that, because there was a common land order, and because a noble lord who was a big landowner lived nearby, any land had to have a rightful owner. I submit that that is not necessarily so. It does not mean that anybody has to be the lord of Maltby far and low common or the lord of the manor of Maltby.The lord of the manor system is based upon feudal law. The feudal system was introduced into this country by Duke William of Normandy, following the invasion and conquest of England. The manor was the basic unit of local government and administration, not land ownership. It is necessary to stress this point as the Norman earls were great land thieves. Their propensity for theft and squabbling over land has continued to this day.
In return for their services the earls were granted manors and other portions of lands by Duke William. Subject to swearing fealty to the Crown and leaving a sufficiency for others, who could be either free people or various kinds of serfs, the remainder of the profits which could be accrued from the land and administration of the manor would be enjoyed by the lords of the manors which they respectively held.
But the lords never actually owned the land. They just held it and enjoyed the profits so long as they lived. If, in turn, the lords of the manors allowed somebody to occupy land, this was only for the duration of the feoffee's life. If on death they wished to pass on their tenancy to somebody else they had to hand back the land to the lord of the manor and pay a fine for the privilege of so doing. The person who wished to take over the tenancy could do so only by payment of a fine to the lord of the manor. Subject to swearing fealty, and so on, this transference of tenancy was not by right but only by the will and acceptance of the lord of the manor.
Similarly, the lord of the manor held the manor only during his lifetime. On death, the manor reverted to the Crown. Only by swearing fealty, and so on, were the manors then bestowed on their heir or assign. In other words, death always terminated both individual tenancies and lordships. This was known as the law of mortmain.
The history of Maltby manor goes back to those days. It was one of 233 manors that were allotted by William I to Roger de Builli. It was called the Great Fee. The manors originally held by de Builli were administered as one large estate, called an honour, this being the honour of Blyth. The separate manor of Blyth was given to a religious order. A castle was built in the village of Tickhill. The 512 administration of the honour of Blyth was handed over to the castle in Tickhill. It then became the honour of Tickhill.
The direct line of Roger de Builli died out. After much bickering, claim and counterclaim and a few acts of revolt against the Crown, the honour of Tickhill became settled with Alice, Countess of Eu who was based on London, Cambridge and her French estates. The castle and honour of Tickhill was sub-infeudated — that is, managed for her by appointed representatives. The sub-infeudatories in turn appointed fee farmer agents to manage various of the individual manors. The Countess of Eu sub-infeudated to the de Viponts. Alice de Vipont gave Sandbeck to the monastery at Roche, which is in my constituency. As my story unfolds it will be important to remember that there was a manor of Sandbeck and a manor of Roche. They were separate from the manor of Maltby. This may have led to great confusion in the past. The Countess of Eu confirmed the grant because all that Idonea de Vipont could grant was the profit she would make as a sub-infeudatory. In turn, the Crown had to confirm the grant by Alice of Eu, which confirmed the grant by Idonea de Vipont. This is how the feudal system worked.
Eventually Alice, Countess of Eu was told, as were all other people who owned land in England and France, "You hold land in England or France, but not in both." Alice, Countess of Eu, opted for France and from that day the Great Fee of de Builli reverted to the Crown and became part of the Duchy of Lancaster. All the old records are filed in the public records office under the title "Duchy of Lancaster papers".
The Earl of Cumberland and others like him were simply sub-infeudatories under the Duchy. In 1837, when the Earl Fitzwilliam agreed to the enclosure of the open field of Maltby, he did so as the sub-infeudatory of the duchy of that part of the original de Builli fee situated in and around, and administered from, the honour and castle of Tickhill.
If the Earl Fitzwilliam or anyone who succeeded him as sub-feudatory holder of the honour and castle of Tickhill had parted with the separate manor of Maltby, the holder of the manor of Maltby—what remained after the grants to the church — would be only a sub-infeudatory of a sub-infeudatory — in other words, a fee farmer to a greater fee farmer who held the lands of the duchy, as of the Crown. The statute in relation to that was one of Quia Emptores in 1289 and it is implicit in that statute that sub-infeudation means that the lordship of any manor does not make sub-infeudatories of the lords. They simply remain tenants. That statute is still used in land conveyancing. The lordship could not have been handed down.
The Earl of Scarbrough married in about 1725 into the family of the Earl of Castleton, which owned more land in that area and in Lincolnshire. A book called "The History of South Yorkshire" by the Rev. Joseph Hunter was printed in 1828. It covered all the lands and manors of South Yorkshire. On page 273 it is shown clearly that at the time of the death of the second Viscount Castleton on 13 November 1640 an abstract was taken of the inquisition after his death. I assume that that covers what land he held.
The list included the manor of Sandbeck:
besides his lands in Lincolnshire, he had The manor of Sandbeck.That is an important fact, because the abstract adds: 513The manor of Maltby, held of the king as of the castle of Tickhill.The manor of Austerfield, which is quite nearby, was another of the manors handed to the honour of Tickhill and was held under the king as of the manor of East Greenwich, and the manor of Slade Houton, which is also close by and is part of the ecclesiastical manor of Maltby and is in my constituency, was also "held of the king".It seems that when the Earl of Scarbrough married into the family of the Earl of Castleton he was perhaps the lord of the manor of Sandbeck, because that was not held as of the castle of Tickhill and was not held by what we now call the Duchy of Lancaster. There may have been great doubts about who was lord of the manor of Maltby—if there was a lord of the manor. It seems that the lordship of the manor was held by the Crown and could not, therefore, have been passed down through generations of a family.
The tithe commutation agreement in 1841 provided that people had to pay money to the parish if they were on the land and were growing crops and so on.
The tithe was about one tenth of what was produced, and it was paid to the local church. The tithe apportionment agreement for Maltby showed that the owner of Maltby's far and low commons and of Woodlee common and Stonegreen was Maltby township. As it happened, none of the commons was being used for any agricultural purpose. No commoners were growing crops on them as far as I can discover. Consequently no tithes had to be paid to the church.
But it is an important fact that the tithe commutation agreement in 1841 said, in effect, that the owner was Maltby township. It would seem that that was never challenged by the then Earl of Scarbrough. Another important point involves the Commons Act 1876. I have not seen the statute, but I understand that that Act had to be signed by all landowners in the area, and in the presence of the lord of the manor. At that time, the Earl FitzWilliam was adjudged to be the lord of the manor. That does not appear in any title deed, but he was adjudged to be the lord of the manor, and was present for the signing. Many people have said that it really does not matter, because the open fields enclosure and the tithe commutation provisions are not proof of evidence and are not title deeds. In the last century the Earl of Scarbrough's family twice applied to Parliament to enclose Maltby far and Maltby low commons. Objections were made. At the public inquiry it was said that those objections involved the ownership of Maltby far and low commons. I have been through the records with regard to both of those agreements. The 1879 one went to a Select Committee, where evidence was taken. I have read through the Select Committee's report, and there is nothing in the record to say that the enclosure legislation went through Parliament— despite the fact that two applications were made — because of the question of ownership.
The only thing that I could find with regard to the 1879 inquiry was that when the enclosure commissioners held two public meetings in the village of Maltby, a man said that the commoners did indeed own the commons. At that time, for a man to turn to the lord of the manor—albeit perhaps not the lord of the manor of Maltby—and to say that he objected to his claim to have the ownership and rights of common land in the area, would have been a big and brave thing for someone to do. I do not know whether that would still be the case in 1984.
514 Evidence was given to the Select Committee on the 1879 enclosure by the master cutler of Sheffield, the lord mayor of Sheffield and by the lord mayor of Rotherham. The area is very beautiful, and was then too. It is visited, and was then. People left the industrial towns of, for example, Sheffield and Rotherham and went to Woodlee common, Stonegreen and Maltby far and low commons for their holidays. Maltby village was known as a beauty spot and many people, even at the beginning of the century, used to go on holiday there. They would go on to the far and low commons and use them for exercise, while having rights as adjudged commoners. That will be restricted if the limitation order goes through now.
What is interesting about the 1879 evidence was that the people in Sheffield, and, I believe, the master cutler, said that there were only two commons where they could go where they had rights of air and exercise without trespass. One was Lindrick common, which is just in north Nottinghamshire, not far from Maltby common. The other was Maltby common.
We have now lost Lindrick common to a golf course, although I do not know exactly when. But if the mayor of Sheffield were giving evidence again now, I am sure that he would say that whereas they once had two commons, they now have only one.
There has been a massive population expansion in Maltby alone, which is known as no more than a township. Over 20,000 people live there. They have the right at present to walk on all areas, certainly of Maltby far common and on areas of Maltby low common, except for the site of special scientific interest in the charge of the Yorkshire Naturalist Trust because of its beauty. In those circumstances, I am sure that with commons commissioners today we could have had an interesting re-run of the decision on the enclosure in 1879.
Let me move on into this century. In 1919 the Finance Act was based in reality on an interesting form of land tax. It was stopped in another place, so no tax was ever levied on anybody. The district valuers had to go round all the land to find out who was the owner, to see whether they were in a position to pay a land tax as owner.
In the district valuer's report of 1915 the ownership of Maltby far and low commons was registered as being Maltby township. There is something strange, because on two occasions, in 1841 and again in 1915, when it was likely that some payments would have to to be made under contemporary Acts if one were the owner of the land, the Earl of Scarbrough or his predecessors sat back and were quite prepared to see the land in the hands of Maltby township.
I do not want to read too much into that, only to say that, as many hon. Members know, I was a coal miner at Maltby colliery before I came to the House. I have an avid interest in local history. I am a founder member of Maltby local history society. I happened to get hold of the royalties map for the Maltby main colliery company. I looked at it to see who claimed the ownership of Maltby far and low common at that time because when the colliery company mined under any land royalties were paid to the landowner. Lo and behold, on the royalties map, Earl Scarbrough's name appears in big letters all over the place, and on the two tiny patches of Maltby far and low commons is the Earl of Scarbrough's name again. Of course, he would wish to be owner of Maltby far and low commons because the Maltby miners were mining coal there and his family accrued quite a few pounds as a result. 515 I do not think for one minute that that was a massive percentage of the coal royalties paid to his family, because it was obviously a small plot of land when one looks round at the thousands of acres that Lord Scarbrough owned. It seems to smack of the fact that in 1915 the township of Maltby may have had to pay rent on the land while Lord Scarbrough was claiming coal royalties from mining it.
§ Dr. David Clark (South Shields)I know that the area is attractive. Sir Walter Scott's "Ivanhoe" begins by describing it as:
That pleasant part of England where flows the river Don.Was Maltby an urban district, and I am right in thinking that there was right of access to the common under the 1926 legislation?
§ Mr. BarronYes, there was a Maltby urban district. For some strange reason many public records of crucial times for the question of ownership have gone astray. We continue to look for them.
I turn to section 156 of the inspector's report. Mr. Ferris, QC, was acting on behalf of the Rotherham metropolitan borough council. At the time of the inquiry the inspector seemed to be satisfied with the question of ownership. At that time many people did not know what was going on. Advice was taken from the QC who represented the Earl of Scarbrough and accepted, without the consideration of evidence that the protesters had, at the meeting.
At present Rotherham metropolitan borough council is consulting with the solicitors, J. J. Pearlman in Leeds, who represented objectors at the public inquiry. They are investigating the legal aspects of the ownership of Maltby far and low common. A prominent member of Rotherham metropolitan district council said publicly that it would seek to finalise the question of ownership of Maltby far and low common, even if it meant going to court. Perhaps because it was said at the public inquiry that the courts must decide the question of ownership, not the inquiry, that may be the case.
In section 157 the inspector states:
I do not consider there is an onus on the applicant to produce his deeds to enable objectors to endeavour to find planks on which to build a case in opposition.If the Earl of Scarbrough has the title deeds of the land, the question of ownership could be settled quickly, amicably, without public delay or any more ado from the inquiry. There would be no more letters written saying that if he was not or is not the owner of Maltby far and low commons he should not have applied for the limitation order. If he showed the title deeds to those who say that he does not own them, the matter could be settled. If he finds trouble about doing that because of personal remarks made about him in connection with the ownership of the land, I shall go to his estate or to his representative in London to see the title deeds. I shall then pass on the evidence to those who still question whether he owns the land.I tabled parliamentary questions about the matter during the past two months. The first was to the Department of the Environment on 22 November. I asked the Secretary of State,
what evidence he obtained, prior to the public inquiry in 1982 concerning Maltby common, to satisfy him on the ownership question.I received this definite answer: 516The evidence consisted of various documents including title deeds, and the opinion of Mr. Francis Ferris, QC, which was obtained by Rotherham metropolitan borough council." —[Official Report, 22 November 1984; Vol. 68, c. 281.]On 3 December I asked another question, although there were many more in between. I asked the Secretary of State,if the deeds he saw from Messrs. Allen and Overy, solicitors in relation to Maltby common, were a deed of title to the specific ownership of Maltby far and low common.Following the definite statement that the evidence had included title deeds, I got a very different answer on 3 December:There was more than one deed and other documentation, examination of which satisfied my right hon. Friend the Secretary of State that the title to Maltby commons could be traced to the Earl of Scarbrough." — [Official Report, 3 December 1984; Vol. 69, c. 63.]That is a little different from saying that title deeds had been seen. That highlights the vagueness of the question of ownership. If it was not vague before, it has certainly become vague after those answers from the Department of the Environment.The limitation order that will be put on the commons is the first, if my information is correct, since 1925 for a golf course on public land. That was when the legislation was introduced. Indeed, I do not believe that a golf course has been put on common land this century. The decision will set a precedent for common land and people's rights to take air and exercise there.
Maltby common is used by Maltby people. I used it as a boy. However, in some ways it has been abused. A tenant farmer of the Earl of Scarbrough used parts of Maltby far common under the agriculture legislation that was passed during the war in the "Dig for Victory" campaign. In the 1960s the local council had a long fight to remove the tenant farmer from the common. Indeed, I remember working on that farm as a young lad. I was employed as a casual labourer to pick up stones from the land. We were filling wagons with stones, and then going to the other side of Maltby common and dumping them there. I now recognise that it is a beautiful area with much flora and fauna that is of great value to naturalists. I was not a naturalist then. I was paid by the tenant farmer to dump stones on Maltby far common.
At the public inquiry we heard that it would be a good idea to use that part of the common because it had become an eyesore. The Earl of Scarbrough should know all about that, because besides the fact that I was paid to dump stones at weekends and during the school holidays, it is well known in my area that the building company owned by the Earl of Scarbrough has been caught dumping on Maltby far common. The county council ordered the company to clear what it had been dumping, which was waste material from houses.
The question of ownership of Maltby far and low common must be resolved. If the Department makes a decision with such uncertainty still in the air, the issue will drag on for years. We must resolve it now. No doubt the Earl of Scarbrough will read this debate in Hansard tomorrow. A couplet has been made up by the people who have been trying to keep Maltby common for Maltby people, which is an honourable objective. It goes like this:
The law locks up the man or woman,Who steals the goose from off the common,But lets the greater villain loose,Who steals the common from the goose.517 Is that true in the case of the Maltby far and low commons? It was quoted at public meetings last century concerning Maltby far and low commons. The Earl of Scarbrough is the owner because he claims that it is manorial waste land and he is the lord of the manor of Maltby, but I would like to know the truth, and I should like the Department of the Environment to know as well. At the end of the day, this proposal will take up 16.5 acres of common land that Maltby people have had the right to walk on for hundreds of years.
§ Dr. David Clark (South Shields)I pay tribute to the way in which my hon. Friend the Member for Rother Valley (Mr. Barron) has presented his case, and for the diligent way in which he has collected the facts on this important matter. I declare an interest as chairman of the Open Spaces Society, which started in 1865. One of our earliest cases concerned Maltby common, and we were fighting against enclosures in the 19th century.
Therefore, we are greatly concerned about the latest limitation order. The Opposition would officially fully support the representations made by my hon. Friend. This land has belonged to the ordinary people of the Maltby district for generations. It looks as though it will be stolen from them, although it may be done legally. I urge the Minister on two points. First, if the Earl of Scarbrough, or anybody else wants an adjudication, but will not accept my hon. Friend, I am happy to offer the good offices of the Open Spaces Society, and I know that my hon. Friend would accept them.
Secondly, will the Minister give the House an assurance that no final decision will be taken on the limitation order until the ordinary people of Maltby have the right to continue their legal inquiries, that the case will be fought fairly, and when it is decided it will be in the light of proven evidence and not on the hearsay of a noble lord?
§ The Parliamentary Under-Secretary of State for the Environment (Mr. William Waldegrave)I join the hon. Member for South Shields (Dr. Clark) in congratulating the hon. Member for Rother Valley (Mr. Barron) on the way in which he presented his case. It was a fascinating tour de force of local history, which will be read with great interest by those who are interested in the area. I congratulate him on the way that he presented a complex and interesting case. It reminds us what a privilege it is to live in a country that has been so free from foreign invasion that we can argue about ownership going back to the 11th or 12th century, with some hope of finding records and unbroken continuity.
In cases such as this, I begin to feel that this is real politics. It was for matters such as this that hon. Members from both sides of the House went into politics. These are real matters that affect the people, and on which careful judgment has to be made. One has to think of tests by which one can measure these matters, and I can think of no better assessment than that of a great hon. Member, who sat for one of the university seats, which have been, perhaps sadly, abolished, although I believe that there is still a Conservative manifesto pledge in 1951 to reestablish them. We have not got around to doing that yet. That was Mr. A. P. Herbert, and one wonders what his view of a case such as this would be. When I come to advise my right hon. Friend the Secretary of State on his 518 decision, I shall have Mr. A. P. Herbert looking over my shoulder to see that we make a decision that is commonsense and takes into account the traditions of the country.
I should like to put on the record a few points, most of which confirm the account of the procedures given by the hon. Member for Rother Valley. Perhaps it will be helpful if I give our understanding of what is happening. We shall carefully consider the hon. Gentleman's points, and any other relevant evidence that is offered, before making a final decision.
As the hon. Member for Rother Valley said, section 193 of the Law of Property Act 1925 gave the public a legal right of access to areas of common land for air and exercise by virtue of their location in an urban district on 1 January 1926. My Department has been involved in this matter for a number of years, and I hope that that will assure the hon. Gentleman that we are not rushing into a premature decision. As he rightly said, Lord Scarbrough applied for an order to impose limitations and conditions as to rights of public access to parts of both commons.
Subsection (1) of section 193 of the 1925 Act provides:
The Minister shall, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to any commonable rights affecting the land, impose such limitations on and conditions as to the exercise of the rights of access or as to the extent of the land to be affected as, in the opinion of the Minister, are necessary or desirable for preventing any estate, right or interest of a profitable or beneficial nature in, over, or affecting the land from being injuriously affected".Such an application was made by Lord Scarbrough to enable part of the commons, as we have been told, together with other land which was not common, to be used as a golf course. The wording of the proposed limitations was provisionally agreed, in accordance with the Department's normal practice.The first occasion when the ownership of these commons was called into question, in connection with this application—although there may have been a history of cases — was following public notice of the proposed order. A number of objections were received and one ground of objection put forward by some of the objectors was that my noble Friend was not the owner of the commons and therefore not entitled to apply for an order under section 193.
The applicant for the order was given the opportunity to comment on all the objections, and various documents, including copies of title deeds, were provided by the applicant's solicitors to my Department.
The Rotherham metropolitan borough council objected to the proposed order, but not on ownership grounds. The borough council investigated the ownership question because of assertions that the council and not my noble Friend was the true owner of the commons. They sought counsel's opinion on this issue from Mr. Ferris. Having considered all the evidence, counsel concluded that the real evidence of title appeared to be all one way, in favour of the Earl.
This opinion was made available to my Department, and I have read it carefully. My legal advisers studied all the evidence of title which had been put forward by the applicant and Mr. Ferris' opinion, and concluded that my noble Friend Lord Scarbrough was the owner of the commons and had the status to make the application for the order. Subsequently, it was decided that a non-statutory public inquiry should be held to assist in 519 determination of the application for the order, but that this should not extend to the ownership question, as the Secretary of State was satisfied on this issue.
However, inspectors appointed by the Secretary of State have considerable discretion in their conduct of inquiries. When, at the opening of the inquiry, several of the objectors challenged the Secretary of State's ruling that the applicant was the owner of the commons, the inspector responded that he was prepared to hear legal submissions as to whether the Secretary of State had jurisdiction to make the order, but he stated that the inquiry could not be a forum for a detailed conveyancers' investigation of the title, as the hon. Member for Rother Valley said. The inspector also pointed out that only the courts could determine conclusively any question of title to land. The Queen's counsel representing the applicant at the inquiry indicated that he was not prepared to disclose details of the applicant's title, and the inspector ruled that the objectors were not entitled as of right to the title documents.
The inspector allowed the various parties to make their submissions on the ownership issue. These are set out in the inspector's report, to which the hon. Member for Rother Valley referred, and based on the evidence presented to him, the inspector reached the same conclusion as that previously reached by the Secretary of State — that the applicant was lord of the manor of Maltby and had the status to make the application.
After consideration of the inspector's report, the Secretary of State was disposed to accept the inspector's recommendation, which was to the effect that the order should be made reducing the area over which the limitations should apply and the number of limitations. However, it was decided that the applicant and the objectors should be allowed the opportunity to make representations about the proposed modifications, before the Secretary of State reached a firm decision. The respondents were originally given 21 days in which to respond, but in response to requests from several objectors, including Rotherham borough council, two extensions have been granted, and the new deadline is 15 January 1985.
Although representations have only been invited from objectors to the proposed modifications to the order, we have already received representations about the ownership issue, and have heard the hon. Gentleman's speech, and consideration will be given to all such representations. I shall pay close attention to all the arguments put forward 520 by the hon. Gentleman. I shall need to study them and obtain legal advice about them. I shall take everything fully into account.
There has been pressure by objectors and by the hon. Member for copies of the ownership documentation which were supplied to the Department by the solicitors acting for my noble Friend to be made available. The trouble is that these documents are not ours and it is not for the Secretary of State to disclose them.
I must emphasise the distinction between the Secretary of State's duty and a court, if the matter came before a court. The Secretary of State's duty is to reach a reasonable decision. He must not lay himself open to legal challenge by taking a decision against the principles laid down in the Wednesbury rules. He cannot make a final legal judgment in the way that the court could. We have taken an unusual amount of trouble in this case to try to check the ownership, because questions were asked about it.
§ Dr. David ClarkThis is an important point. Is the Minister saying that, if his right hon. Friend the Secretary of State makes a limitation order and there is then a legal challenge, the "common" people could continue to have their right of access pending the court's decision?
§ Mr. WaldegraveI shall have to go carefully here, and perhaps write to the hon. Gentleman after legal advice on the matter. It would be wrong of me to say, off the cuff, that we would wait indefinitely for a potential court challenge, because one might never come.
If a court challenge were mounted, it would be a serious matter, which the Department would wish to take into account. It would be wrong for me to try to settle that matter from the Dispatch Box now. I shall take further advice on it.
The Secretary of State must beware of legal challenge from either side. If he were to make an unreasonable judgment on the evidence before him he would be open to legal challenge. We must reach our decision on the basis of the evidence available to us. We are, as the House can see, taking considerable care to ensure that we do that.
If objectors wish to pursue strict proof of title, that must ultimately be done in court. The expertise of the hon. Member for South Shields is well known. We shall pay close attention to what he and the hon. Member for Rother Valley have said. We shall take further advice about the implications of any court case. I should be grateful to the hon. Member for Rother Valley if he would kindly keep the Department informed about any such developments, because they would plainly be relevant to any decision we make.