HL Deb 07 December 1959 vol 220 cc6-48

2.44 p.m.

VISCOUNT GAGE rose to call attention to the Report of the Royal Commission on Common Land, 1958 (Cmnd. 462); and to move to resolve that this House would welcome the introduction by Her Majesty's Government of legislation based on the recommendations of the Commission at the earliest opportunity. The noble Viscount said My Lords, in putting down this Motion I am making no pretensions whatever at being an expert on commons. I do not quite know how one becomes an expert on commons. I have no doubt that there are noble and learned Lords in this House who have great knowledge of the law relating to commons, and it may well be that there are even lay Lords who have great knowledge of particular commons; but I think there are few people who would have the same degree of general knowledge as the members of this Commission, who have in the course of over two years visited over 100 of these commons and who have, I think, considered evidence supplied from over 300 different sources. We must be grateful to the members of this Commission for the work that they did and, at the end of it, for producing such a readable, interesting and informative Report as they have.

I think there are few people who are qualified to contest their findings, at least as to facts. What are these findings? Some of the salient points are these. In the first place, let us take the area. It is not quite certain what the area is, but it seems to be at least 1¼ million acres, which is quite a lot. If all the commons were put together they would be equivalent to quite a large county—a county as big as the whole of Devonshire.

Then the Commission describe the great variety of land which is included in this area. There are great areas of moorland like Dartmoor, the steep hills of Cumberland, wooded areas like Epping Forest, metropolitan commons, village greens, small areas of roadside waste—all these come under the heading of commons which were looked into by the Commission. They point out that although a considerable portion of this area is not very fertile, at least 21,000 acres of it was ploughed up for food production during the war, and at least 400,000 acres of it could, according to the Forestry Commission be used for forestry. The Forestry Commission actually stated, I believe, that 800,000 acres were plantable, but that they considered that 400,000 acres could not be planted without injury to the interests either of food production or of the urban population's need of open spaces. But they point out that deterioration is going on now, particularly in the more fertile areas, and that if it is allowed to continue these areas will soon become covered with scrub and weeds and will be useless either for the purpose of production or of public recreation. As no doubt many of your Lordships know, that has happened in quite a number of places already.

Next, they deal with all the interests in these commons—interests which are actual and interests which are potential; the interests of the owners, the interests of the commoners, amenity interests, public recreational interests, agricultural and forestry interests, the interests of those concerned with water supplies, the interests in certain places of the Services, the interests of scientific bodies concerned with botany and natural history, and even (this question is a little more controversial) the interests of local authorities who want to build houses on the areas of land which are not of the highest agricultural quality. They find that, although many of these interests may be mutually conflicting, they could to some extent all be reconciled, to the great advantage of all, by a system of management that is appropriate to the twentieth century instead of one which was appropriate to the thirteenth and fourteenth centuries.

Long ago, when people built their own houses out of clay and wattle and odd pieces of wood and stones, it was essential for them to have supplies of these materials close to hand. In the days when they needed large areas of rough grazing to maintain their cattle and to keep themselves from starvation many of these traditional methods made a great deal of sense. But to-day, with a population perhaps fifteen or twenty times as great, with housing and food supplied in quite a different way and with 7 million motor cars touring round the country, many of them seeking places in which to park, these old traditional methods make very little sense.

The Commission noted with approval the dictum of the late Lord Jowitt in this House in 1955, that we were encumbered by a mass of Anglo-Saxon laws and that he wished to goodness someone would send those laws packing, bag and baggage. One is left with the impression that had all this land been in private ownership the law would have come down heavily on the owners long ago; and I have no doubt that had the law permitted it a good deal would have been put under supervision. For it is clear from reading the report of the Commission that, except where there is special legislation in force, there is a great deal of uncertainty and confusion and not a little ill-feeling and, as I have said, a great waste of land.

Having regard to the findings of the Commission on the facts alone, and the amount of land involved, and to the fact that the Government in 1955—a Government not very different from the present Government—thought the matter sufficiently urgent to recommend the setting up of this Royal Commission, I am a little surprised that this Report has not attracted more Parliamentary attention, and I am a little disappointed that no reference was made to it in the gracious Speech. I believe that there was a debate in another place last February and that there has been one Starred Question here; but that, I think, is all.

I have no doubt that one of the reasons for the delay is that Her Majesty's Government have been consulting with various interests. That is a very good thing to do, because whatever is done and whatever changes in the law they may suggest I am sure will be unpopular in certain quarters. The trouble seems to be that any disputes and bad feelings which exist usually originated long ago, and when people have old grievances, whether well-founded or not, they rarely come together in a co-operative frame of mind.

I was reminded of that fact when, some months ago, it fell to my lot to take the chair at a meeting convened by my local county council in the fond hope that by getting a number of people together in regard to a particular common, some scheme could be evolved pending any legislation that might emerge from this Report. But we discovered that our hopes were not very well-founded. The dispute concerned an area of about 250 acres of land which had been requisitioned by the Ministry of Agriculture during the war and which, being fertile land, was particularly susceptible to deterioration. At the meeting it quickly became quite apparent that no one was at all ready to compromise.

The lord of the manor got up and stated quite categorically that he had a right of absolute freehold. The commoners said that their rights existed and that the lord of the manor was trying to filch their rights from them; and representative; of the local inhabitants said that whatever the state of feelings existing between the lord of the manor and the commoners, they had a complete right to go anywhere they liked on this land and that any fencing was irregular and improper. Yet legal officials of the county council, having gone into the matter as carefully as they could, were convinced that none of these statements was capable of absolute proof, at least on the evidence available, and that there would have to be a determination by the courts. I hope and believe that wiser counsels have since prevailed, but at that time it certainly did not appear that anyone was really interested in getting a solution and that it was for somebody else to decide.

I instance this case only because, judging by the Report of the Commission, that does not seem to be an isolated instance, and therefore I am rather surprised that it is a little difficult to follow what the Commission recommend should be done. Possibly it is my fault for failing to understand, but the Commission seem to suggest that the two main new features ought to be the setting up of Special Commissioners to hear disputes and management committees to manage these commons. With all due deference, I should have thought that those were two very good ideas, because there are commons which are managed satisfactorily under special Acts of Parliament, and this would seem to me to be a form of process for getting the equivalent of Private Acts all round, and a process which is much cheaper and easier.

When, however, we try to discover how these disputes are to be submitted to the Commissioners and how the management committees are to be set up, it is a little difficult to follow the Report and to see (if I may put it ungrammatically) who does what, and when and who pays for what. The Commission seem to visualise the process in five or six stages which do not necessarily follow each other in order of time but may overlap. There is a stage when the claims are registered. There is the important stage when disputes are submitted to the Special Commissioners for arbitration; and then there is the stage when suggested schemes of management can be submitted. It appears that quite a number of people can submit schemes, independently of each other, schemes possibly having no relevance to each other. These schemes are then collated by the county council who forward them to the Minister with their comments. The Minister, after a great deal of consultation with various bodies, pieces the whole picture together; and, after a local inquiry, the result of his cogitations are embodied in a statutory instrument and submitted to Parliament.

It seems to me that the mere recital of all these stages suggests that even with the maximum co-operation of all concerned it would probably be several years before the first management scheme could be put into operation. I would interpose at this moment one parenthesis. I noticed that in the debate in another place last February the spokesman for Her Majesty's Government indicated that he would welcome expressions of opinion from Parliament on a number of points; therefore I hope that my noble friend Lord Waldegrave will not consider it impertinent of me if I endeavour to make some response to that invitation. I should perhaps add that, although I am a member of the committees of both the County Councils Association and the Country Land Owners' Association who are dealing with these problems, I cannot claim to speak on their behalf. I do not know whether they will agree with what I have to say, but I know that both are on record as having stated categorically that they believe there is an urgent need for legislation as soon as possible. If I"drop any bricks" I shall probably hear about it later.

This seems to be the position. The Report appears to me to put the Government in this basic difficulty: that either they must wait until the whole registration process is complete; which according to the Commission's Report will not be for twelve years, before doing anything else, or they must do something of a provisional nature, something which might have to be changed later. I believe that to announce that in the first twelve years they would do nothing but register would be a counsel of despair. Even if the Government cut down the registration period to six years I should still not think it a good plan to do nothing else. I say that for two reasons. In the first place, I believe that it would put a premium on delay in registration and delay in making schemes. We are all, to some extent, the victims of inertia. If we have something difficult to do, and know that we have twelve years to do it, or even eight years, we tend to put it off—so I think solicitors are all very busy people. But, in addition to that, I think that obstructive and contentious people would deliberately suspend putting in their schemes and plans until they had seen what other people were going to do.

My other reason against delay for twelve years is of a quite different nature. It concerns the public. I think it would be quite fatal to the intentions of this Report if we were to say to the public, as this Report says, that they ought to have rights of access to all commons, but did not define what those rights are. In my experience the public are, generally speaking, very law-abiding. I believe that in various parts of England there is increasing trespass and increasing hooliganism, but I think that at the moment that is not widespread. But if the whole position as to what they may do and what they may not do is left vague they will begin making assumptions. And when we have 7 million or 8 million (no doubt it will soon be 8 million) cars, and that enormous number of motorists touring around without being quite certain about what they may and what they may not do, I think they will start making assumptions, assumptions which it will be extremely difficult to correct later.

For these reasons, I would most respectfully ask Her Majesty's Government whether they would not consider adapting for this purpose some of the principles that have already been adopted in the Town and Country Planning Act procedure. Under that Act, as your Lordships no doubt know, the very complicated development plans that are made by the planning authorities have to be submitted for revision every five years. I would suggest that the Government should aim at having all important commons covered by one scheme or another within three years of the appointed day, but that those schemes should be subject to review at periods of five years, at least until the registration period is over. If I am told that three years is a ridiculously short time in which to make any registration claims I should like to point out that under the Town and Country Planning Act, 1947, the ordinary citizen was given no more than two years to register what are known as his Part VI claims; that is to say, claims for loss of development rights. There may be some legal reason why commoner's rights require a very much longer time to register than the ordinary rights over private property, but I wonder whether there would be any real hardship if they were given not only a slightly longer initial period in which to make their first registration claims but also a further period of five or ten years to make later claims which it might be too difficult to discover and put in earlier. I have no doubt whatever that this idea will be"shot down" as indeed, I sometimes feel, any other scheme of a positive nature is sure to be. I would, however, claim the following advantages for it.

In the first place, it would relieve the Government from the almost impossible task of trying to achieve perfection and finality all in one go. I think, secondly, that it would act as a very much-needed incentive to expedition in submitting registration claims and management schemes. Thirdly, I believe that it would tend to concentrate attention on those commons which are positively crying out for decision and action. I speak from great ignorance, but I believe that if we went through the list of commons we should find that quite a number are controlled under Private Acts or as regulated commons on which the public have certain defined rights. Although there might be some defects, these commons could well be left alone for the first five years. But I think we should find other cases where nobody knows whether he may or may not put up a fence or repair an existing fence, whether the public have rights, or what those rights are. There might even be considerable doubt whether it is a common at all. If we are going to leave such places for a long period without some form of control we shall certainly invite deterioration of the land and quite possibly breaches of the peace as well.

I cannot pretend that I think any scheme of that sort would succeed unless the county councils were given a much more positive rôle than seems to be envisaged the Report. I am not dealing with county boroughs, because the question of urban commons is of a different nature. According to the Report, the county council appears to act in the first two years partly as a registration office and partly as a sort of post office to transmit schemes to the Ministry. I think that if that were to be their sole duty it might well mean in certain cases that it would be just two years wasted. I can see no reason why the county council should not from the very start at least be empowered to submit and circulate draft maps on their own, as they did in the case of footpaths. The county councils have a good deal of knowledge based on their planning surveys, and they have Professor Dudley Stamp's admirable Appendix to help them. I have no doubt that these maps would all be hotly contested, but that would at least start the ball rolling.

Then I think that the county councils should have the power, not of vetoing the schemes put up by other bodies but of commenting on them—and not only to the Minister but to the people who submit them. That process might well have the result that a number of schemes which, although they might not be frivolous, might be foolish, would not require to be considered by the Minister. It would be very foolish, for example, for a body to submit schemes which were based on assumptions that were contested and could have no validity until there had been a determination by a court. I think it would be foolish, for example, to submit schemes which took no account of the processes of nature—and there is considerable ignorance on that score in many urban localities.

I also think it might be foolish to submit schemes which take no account of finance. Having been a member of local authorities for many years I may perhaps say, without giving any offence, that the sort of scheme which a local authority will put up if they have to pay for it themselves may be very different from that which they would put up if somebody else had to pay for it. And if the county council were selected, in a number of cases as the appropriate body to pay, I feel that they might at least be given a certain right of protest. I believe that finance is going to play a considerable part in this operation, particularly if we are to reclaim these commons, a number of which are now little more than repositories for old ironmongery.

What I hope, then, my Lords, is that the county councils would acquire in this way, not power but influence, and I think that if they did that the Minister's task might be made a great deal easier. I feel that then, in a slow and unspectacular way, there would be a gradual improvement in this thorny problem. I may say, that I am a considerable believer in the truth of that old French proverb, which says that"Nothing endures like the provisional". I have put down a Motion asking for your Lordships' support for this Report and it may be thought a little odd that I should have spent so much time talking about its defects, or what appear to me to be its defects. But the explanation is quite simple: I want to see this Report implemented, and I do not think it ever will be unless the drill, or what I understand to be the drill, is greatly fortified. In any case, I am not asking your Lordships to endorse my criticisms: I am asking your Lordships only to agree with both the County Councils Association and the Country Landowners' Association that legislation is really highly desirable, and that action should be taken as soon as possible. In that spirit, I beg to move.

Moved to resolve, That this House would welcome the introduction by Her Majesty's Government of legislation based on the recommendations of the Royal Commission on Common Land, 1958 (Cmnd. 462) at the earliest opportunity.—(Viscount Gage.)

3.15 p.m.


My Lords, I think everyone is under a deep debt of gratitude to the noble Viscount for having brought this matter to the attention of the House. The noble Viscount said that there are no experts other than members of the Committee, but I imagine that there are also those experts who gave evidence before the Committee; and he is one of them. It is quite evident from his speech that he knows at least something about this subject, which I agree is more than can be said about most people. May I say at the outset that I hope he will not press his Motion; because, while many of us would agree that this is an urgent matter and requires legislation, we should not necessarily agree that it requires legislation on the basis of the recommendations of the Commission. The noble Viscount's Motion does, in fact, tie us down to those recommendations which he has spent a good deal of time this afternoon opposing. So that, while we can all, I hope, agree that legislation is urgently necessary, I trust that he will either amend his Motion or will not press it.

I should like also to thank the Commission for the work they have done. They have spent two and a half years on this job, and they have prepared a most informative and learned Report. Three members of the Commission have actually added to the Report by writing learned articles themselves: the Chairman on the legal aspect of commons; Dr. Hoskins on their history; and Dr. Stamp on the location of commons. The Commission have seen hundreds of witnesses; they have spent, I think it is, something like 90 days hearing evidence; they have had evidence from 156 associations; and generally it has been a monumental task. I therefore feel that, while thanking them, thanks alone are not sufficient. The best thanks we can give to a Commission is to take note of their Report. It is now a year and a half since they made their Report, and, so far as I know, no action has yet been taken on it. I do not know even whether the Government have given it any consideration. If they have, they have been very silent, and none of us knows anything at all about it; indeed, it looks as though no action is proposed to be taken in the forthcoming Session of Parliament.

As the noble Viscount said, this was regarded as an urgent matter in 1955, because in that year a Royal Commission was set up. I feel that there ought to be some kind of trade union for members of Royal Commissions for their protection; because they give an immense amount of their time and labours to public work, and it is most disconcerting for them to find, after all they have done, and having prepared their Report, that there is only dead silence. I suppose that the shelves in your Lordships' Library are full of Reports of Royal Commissions and other Commissions which have been wholly ignored; and I think that the sooner members of Royal Commissions get together and do something for their protection the better.

I have mentioned the great detail with which the members of this Commission have investigated the matter of commons, and I cannot help feeling that the result of all that has been that they have somehow"missed the wood for the trees." This is a Report in the greatest possible detail, with recommendations in the greatest possible detail. I do not propose to take up the time of the House in discussing the Report in any detail—the noble Viscount has given us, I think, a very accurate statement of what the Report is all about, and of the problems and difficulties. In a nutshell, there are some 1½ million acres of land which are subject to certain individual rights—grazing rights, rights of estover, rights of piscary and all sorts of other rights. No doubt the noble Viscount has a long list of these rights, which are hardly ever exercised nowadays because nobody knows who is entitled to them. In the meantime, this land is going to waste, and every year that goes by makes the position more and more difficult. We know that most of this land could be put to effective use if only somebody could gel: hold of it. We had that experience during the war, and we know that it could be used. Furthermore—and here I would remind your Lordships of the debate we had on housing last week—we know that every year we shall need more and more land for housing purposes, and that most of that land has to come from agriculture. Whilst I am not suggesting that common land should be devoted to housing. I do say that if we could divert the common land to a useful purpose it would go a long way towards making up for the loss of agricultural land which we are bound to incur in coming years in order to provide housing for the people.

What is the solution? Frankly, I do not think that the recommendations of the Report are a solution at all. I think that the Commission have been inclined to accept the status quo, to build on it and to perpetuate the difficulties in which we find ourselves. The fact is that, broadly speaking, all these rights are to-day out of date, just as the copyhold system became out of date and was abolished by the Law of Property Act, 1926. I think that the time has come for a new Law of Property Act. My suggestion would be a simple one. With respect to the noble Viscount, who suggested that we should emulate what we did in the Town and Country Planning Act, 1947, I would say that I think that we can deal with this in a simpler way. If it is true that the majority of those who are entitled to rights are not known, in spite of the efforts of the Commission to discover some of them; if it is not clear what these rights are, and if, in the meantime, the land is going to waste, is it not the sensible thing that this land should go to the community? I should like to suggest that at a certain date all common lands which have been defined and which local authorities know about should become the property of the county council or county borough.

There would be persons who have rights of some value. I would agree that they should be entitled to put in a claim—the noble Viscount suggested within two years; we might make it three, if you like, or five. Anyone who claims that he is damnified by the taking over of this land by the local authority should have the right to put in a claim. I do not think that it would be in the public interest that existing rights of people should be allowed to continue. Even in the best of cases—in the case of grazing rights, the right of certain people to graze the land at certain times of the year—this is not the most efficient method of using the land. Therefore I would not restore the rights to the individuals; but if they could establish that they had these rights and that they were suffering as the result of the taking over of the land by the local authorities, then they would be entitled to compensation.

That compensation could be assessed in the usual way; if necessary, by the Lands Tribunal. In that way, I think that nobody could complain that his rights had been expropriated. The land would then go back to the local authorities, to be used, broadly speaking, in the way in which it had been intended that it should be used in the past, but it would be open to a local authority to establish that it could be used in a more effective manner. The scrub and waste and the trees which have grown could be cleared and the land used for cultivation. The Report gives certain examples of where such land had been very productive during the war and it could be made productive again. A large part of the common land could be used for afforestation. Generally speaking, we should be getting real value for any compensation we might be called upon to pay.

I think that this is a case where the Government might pay a proportion of the compensation. I think that it should be shared between the local authorities and the Government. But I do not visualise that compensation will be high. The Report makes it clear that the majority of people who are entitled to rights cannot even be found. It may be that if there is compensation floating around a number of them may appear, but they will still have to establish that they have suffered financially as a result of the taking over of the land, and I think that in the majority of cases it would be difficult to establish that.

As the noble Viscount put it, registration would be a long-drawn-out and complicated exercise which, in the end, might not be at all satisfactory. I think that the Commission have greatly underestimated the administrative difficulties. They say that the local authorities, to whom the task of registration and investigation will be referred, are accustomed this sort of work and can take it in their stride. I doubt very much whether the majority of local authorities could take a matter of this kind in their stride. It would mean the creating of some kind of special organisation to carry out this registration.

The Commission also recommend that the Land Registry should be used for this purpose. But anyone who has experience of the Land Registry at the present time knows how overwhelmed they are. It takes months before one can get land registered at the Land Registry. Yet the fact is that only a relatively few areas in the country are subject to compulsory registration. It is an urgent matter that the whole of the land of this country should be subject to compulsory registration, and I would put that as a very high priority. But at the present moment it is unthinkable. To imagine that this colossal additional task can be imposed on the Land Registry in the foreseeable future is fanciful. So, in my view, the recommendations of the Commission are not workable.

I am sorry that they should have come to conclusions of this kind. I can only suggest that the extraordinary complexity of the matter must have caused them to misconceive the right solution which, in my view, is staring them in the face. I suggest to the Government that they might well consider the idea of the acquisition of common lands through the local authorities and so enable the local authorities to use this land for the best possible purpose. If they fail to do this, then the situation will be worse and worse as time goes on, and I shudder to think what the state of much of this waste land, as some of it is called, and common land, as other of it is called, will be in, say, ten or twelve years' time. I put forward this solution in the hope that it will receive favourable consideration.

3.31 p.m.


My Lords, I have an interest in commons which forces me to take part in this debate and to express my hope that your Lordships will accept the Motion moved by the noble Viscount. The National Trust, of which I have been an official for many years, owns 40,000 acres of common land, which I am glad to say, under their Act, can never be put to those profitable uses to which the noble Lord, Lord Silkin, has referred.


My Lords, I am sure the noble Viscount is not really serious.


Yes, I am serious.


I should not dream of suggesting that any hand should be laid on National Trust land or any land which is held in the possession of, say, the local authorities, like metropolitan and other commons or Epping Forest. I was really referring to the land described by the noble Viscount; that is, land which is of uncertain ownership and with uncertain rights.


The moral of the noble Lord's intervention is that the rest of the commons of England must be taken over by the National Trust. The National Trust have no doubt whatever of the deterioration which is taking place on these commons. In their evidence before the Royal Commission they made it clear that during the last ten years, or even less, changes have taken place that have reduced beautiful open spaces, with rides of cropped grass, to a maze of thicket and scrub. Maidenhead Thicket is a good example of this; and it belongs to the National Trust. Half of it is covered with impenetrable jungle; the other half was taken over by the local authority under the plan of the noble Lord, Lord Silkin, and was bulldozed during the war into a featureless plain of arable land. Everybody knows that the grassy glades and paths which are so attractive to the public are rapidly disappearing; and, as the National Trust said in their evidence before the Royal Commission, it is the disappearance of rabbits which has accelerated this process.

The Royal Commission in their Report repeat this lamentable fact and say: All too often the pleasing, well-cropped sward has been followed, when the grazing ceased, by an untidy mess of bracken and bramble. They point out that insufficient grazing prevents the public from properly enjoying the land. An article on the Sussex Downs, which appeared on November 19 in Country Life, says: Even the decline of the sheep has been hardly more important to the vegetation of the Downs than the sharp reduction of the rabbits. The fact is that we have thrown away this cheap and efficient labour for a handful of silver. I will not comment upon the disgraceful way in which this was done by the introduction for commercial purposes of a terrible disease, a thing almost as shameful as shooting down deer by night under the light of a searchlight. The balance of nature has been wantonly upset.

It is true that, so far, these moneymakers have not everywhere cut down the hedgerows and the wayside trees which they would like to cut down in order to gain a little more ground for turnips and make England look like Northern France. I have a strong suspicion that in this sporting community they will never be allowed to plough up the golf courses and the racecourses on which obviously such fine crops could be grown. But the more defenceless and summer charms of our lovely English countryside—the birds, the butterflies and the bees—are being killed off by toxic sprays to benefit the growing of brussels sprouts, and maybe to poison the people who subsequently eat them. Jays and magpies, too, are being what is called"kept down" by game preservers, although they rid us of 80 per cent. of the eggs of wood pigeons, of which there are now, as I think everybody will agree, far too many.

On the Chiltern Hills where I live I used to have a large park which was kept in order beautifully by rabbits. My son, who lives there now, has seen that park fall into shabby scrub and coarse grass, and has had to spend a great deal of money fencing that park and grazing it with cattle. Well, he is very lucky to have enough money to do that. I myself live in more humble circumstances on a common which is much loved by the public. Every Saturday and Sunday the prosperous proletariat of the Welfare State motor down to enjoy this lovely heath that the rabbits used to keep so well. Surely, then, someone must restore, with either money or labour, what is one of the most popular picnic places within forty miles of London, where children can play in safety, where parents can sit in the sun, where dogs can run without leads, and where Lord Silkin has not dug up the countryside. In my eyes it is a charming sight.

A very different view is taken by the National Farmers' Union, in a document that no doubt most of your Lordships have received. After suggesting that a rash of housing should be allowed to encroach on common land by the usual temptation of offering poor commoners compensation, they give their views about the public which draw a very different picture from the one that I see every week-end. I should like to read it to your Lordships: It would be idle to pretend, however, that farmers are optimistic about the way in which less responsible members of the community will conduct themselves on commons, or about the effectiveness with which the code of behaviour can be enforced. Our experience of public conduct on farm land in the National Parks has shown that while members of recognised amenity bodies are familiar with the country code and generally zealous in its fulfilment, this does not apply to large and increasing numbers of townsfolk whose activities include destruction of fences, letting dogs run loose among stock, lighting fires and trampling on growing crops.… We find nothing in the Commission's Report to suggest how this code could be properly enforced; and while we wholeheartedly endorse the view that much more needs to be done in educating the general public … we cannot but believe that sterner application of the law and rigorous systems of patrols may be necessary in some of those areas where urban and rural communities live in close but not always harmonious proximity. That really means stop the picnics, tie up the dogs and introduce a policeman. A great dislike of their urban fellow countrymen seems to me to be obvious in this document. But in point of fact the public, hungry for the sights and sounds of the countryside, do no harm whatever to the common on which I live. Never-the less, it is becoming a wilderness, not because of the public, but because of the neglect. What are we making of this lovely island in which we live?

I do not pretend for a moment that all the 85,000 members of the National Trust are so detached from money values that they will agree with what I say. A lot of statistics can be hurled about to show the loss of food that was caused in the old days by rabbits. But"man cannot live by bread alone", as is proved by the fact that no one has yet, in spite of the noble Lord, Lord Silkin, ploughed up the large spaces of Hyde Park.


My Lords, if the noble Viscount will forgive me, I do not mind his saying this twice, but he has now said it three times. What does he mean by ploughing up land? I have never ploughed up any land in my life.


To"put it to profitable use". I know that phrase well, and it in fact means ploughing it up. No doubt I shall be told that rabbits are vermin. These facile definitions, whether they are used by farmers or, as I have been told, sometimes by politicians, are both inaccurate and insulting. Every child knows how charming rabbits are, though masses of children have now never seen one. And every dog knows that his walk is spoilt by having nothing to chase. I repeat, my Lords, what are we making of this lovely island in which we live? In Shakespeare's time it was"a precious stone set in the silver sea". Now it is becoming a rubbish heap surrounded by car parks. It is true that the rabbits are coming back, and I welcome their return. It may take them a long time to defeat their mercenary enemies, and meanwhile it is the duty of the Government to take on their unpaid work and to extract from this Report, as suggested by the noble Viscount, a scheme that will preserve in this small island every oasis of wild and beautiful land both from commercial exploitation and from undue neglect.

3.47 p.m.


My Lords, though like the noble Viscount, Lord Gage, though perhaps not like the noble Viscount, Lord Esher, I cannot claim to be an expert on commons, I should like to welcome very warmly the Motion on the Report of the Royal Commission on Commons which the noble Viscount has rightly tabled for discussion to-day. Your Lordships have very often during recent months been concerned with debates on the Report of other Royal Commissions, and I am afraid that our general experience as to the value of these Commissions as a constitutional device for the solution of difficult and intractable problems has not been a very happy one, in that the Reports of the Commission have tended all too often to be like those thunderstorms which are traditionally supposed to clear the air but which in practice seem merely further to increase the atmospheric tension. The Report, however, which has been produced by Sir Ivor Jennings and his colleagues does, I think, appear to anyone who reads it, to be a welcome exception to that rule, and I hope very much that the Government will feel able to accept this Motion. For if the Commission have not necessarily found—and the noble Lord, Lord Silkin, thinks they have not found—a complete solution to the extremely thorny questions with which they had to deal, they have at any rate, I am sure, gone a long way to clear all our minds and point to some extent, at any rate, the way which we should go.

I am sure that most of us, when we think of the word"common", have a picture of those commons which most of us know best, those small open spaces with commoners' rights, in the middle of enclosed countrysides, often in the near neighbourhood or even within the precincts of great cities—areas roved over and loved by the public, but often to the detriment of rights of commoners who still exist. If indeed, the 1½ million acres of land in this country which have been subject from time immemorial to these commoners' privileges were of that character, no doubt the problem presented to the Government and to all of us would be something which anyone might boggle at. But, my Lords, fortunately, as the Commission make perfectly clear at the very outset of their Report, that would be a travesty of the facts. By far the greater part of the common lands of Britain—something approaching 1 million acres out of the 1½ million acres which is the total acreage of common lands—is to be found in the more mountainous and remote districts of our Island; great stretches of land to the North and West of Britain (I am quoting from the Commission's Report), hill sheep farming areas of the Pennines, the Lake District, the heart of Wales, the uplands of Devon and Cornwall, Dartmoor, Exmoor and so on. I found it very difficult in reading the Report, to find out the exact relationship of these greater common lands, if I may so call them, to the others to which I have already referred. We are told in paragraph 64 that in England the total area of common land is 1,054,661 acres, out of which what I have called"greater commons" are 783,000 acres. In Wales the total acreage is given as 450,000 acres; but no figure is given as to the proportion of the larger to the smaller commons.

I think we can take it, broadly speaking, that the larger common lands, by which I mean commons of individually more than 1,000 acres, in England and Wales are about 1 million acres. I do not say that these great empty stretches of land do not present their own problems. Obviously they do. No doubt they might be made greater use of by farmers if proper schemes could be devised to enable commoners to work together for their common benefit. But considerations of that kind are not insoluble, if the commoners can be persuaded to co-operate. It may very well be that, if nothing has been done up to now, it is merely because it has never occurred to the commoners to get together for a purpose of this kind. Anyway, these far off places, even with the advent of the motor car, are not likely to be greatly troubled by incursions of the general public, except by occasional visits by ramblers, to whom it may be possible to appeal by notices and so on; and evidently in the view of the Commission, it should be possible to tackle this problem of greater common lands—and that is two-thirds of the total problem—without engendering too much heat and friction, and so deal with what is, at any rate in area, by far the largest part.

There remain the smaller commons, the commons of 1,000 acres and downwards, which are scattered about along the length and breadth of the land. For them the Commission have devised plans —the plans referred to by the noble Viscount, Lord Gage, and the noble Lord, Lord Silkin—which certainly seem practical. If they err (and I think this is Lord Silkin's view), they err on the side of the commoners. These smaller commons undoubtedly do present immense difficulties. For one thing they nearly always coincide—and the Report emphasises this—with areas of poor soil, which, in the words of the Report, have repelled the farmer throughout the ages. Moreover, of course, they are extremely heterogeneous, both in their nature and in their situation, and therefore not suitable for any single standardised use.

Nor are those admirable people, who are in entire agreement as to the general principle that a common should be put to some useful purpose, by any means in equal agreement as to what that useful purpose should be. Some want them devoted to agriculture, which means, in effect, closing them and excluding the public from them. Others want them used for the enjoyment of the people, which means general access of the public to them and their conversion into playing fields and so on. Others want them built over, since they are, as we have already said, situated on poor soil, which is not, in the view of those people, suitable for anything else. And finally there are those—with whom I have considerable sympathy—like the noble Viscount, Lord Esher, who are especially interested in the fauna, flora, ecology and general beauties of our country, and who would really, in their heart of hearts, like them left exactly as they are.

The competing claims of all these widely differing objects will, of course, have to be fought out in due course. But the first thing, clearly is—and the Commission recognise that—to find out what are common lands and what are not. That seems at present extremely doubtful. And for this purpose as I understand it, they have proposed immediately on the passing of necessary legislation that each county council in England and Wales should set up a registry of claims as to what land is subject to common rights. I should have thought that that was clearly a very sensible proposal, and indeed a necessary prerequisite to any further action of that kind, whatever it may be.

I confess, with the noble Viscount, Lord Gage, that when I came to the detailed features of the proposal I had certain doubts. The Commission's proposal, as he defined it, is that these registers should be open for eight years for the registration of claims, and for a further four years during which no further claims could be registered but objections could be lodged; that makes twelve years in all. I must say that I wonder, with the noble Viscount, Lord Gage, whether so long a period as that is really necessary. The existence of the registers is to be widely publicized; notices are to be put up at town halls and on the doors of village churches and anywhere else where people are likely to read them, to ensure that everybody knows of the existence of the registers and those who are making them. Is it really necessary, in such circumstances as those, to keep the registers open for twelve long years before we go further in building up the future administration?

It is not necessary, after all, for this purpose that we should know who every commoner is. What is necessary to know is whether there are any commoners at all. Once you have found that out, you have gone a considerable distance in planning your further policy. If some more commoners turn up later, within a certain period which might be fixed, well and good But it is possible to act, as it were, with a quorum of commoners. I would have thought that possibly the three years which the noble Viscount, Lord Gage, suggested is too short: but four or five years, at any rate, should be ample for that purpose.

I am also rather doubtful about the proposition, if I have got it right, that anyone who makes a claim may be regarded as having established it unless somebody else protests. It seems to leave the door very wide open. I realise that the Commission have tried to guard against what they recognise as this danger by proposing, in paragraph 264, that it should be a criminal offence to register a claim without just cause. But, my Lords, this would be very difficult to prove in practice. I cannot help feeling that the claimant making the claim should be forced to produce some positive evidence, even if only oral, of the justice of the claim he makes. But, with those powers, I believe the proposal for the register to be perfectly sound, and I believe that the county council is the right body to be in charge. It is not too remote and yet not too small and parochial. In cases where no owner and no commoners can be found, I understand that the common is to be transferred to the Public Trustee, and by him to the local authority. That may seem at first sight rather arbitrary; but with no owner and no commoners there really does not seem to be any alternative, if the common is not to become a sort of no-man's-land with no one having a duty or obligation to keep it in proper order.

All these proposals, and the ancillary ones—the appointment of Commons Commissioners, the appointment of assessors to assist them, the drawing up of schemes by commoners, and so on, seem sensible and worthy of serious consideration by the Government and everybody else. All that, I hope, may be regarded in this House, too, as relatively non-controversial: but, before I sit down I should like to say something, very briefly, about two proposals in the Report which I believe are not uncontroversial and which many of us might well regard as revolutionary.

The first is a recommendation, in paragraph 314, that all common land should be henceforth open to the public as of right. That means a far-reaching change in the whole basis of common land and common rights as they have been understood for many centuries in this country. Never, so far as I know, has common land meant land to which all the common people of England and Wales have a right of access. Nor has it meant (here I think was the fallacy of Lord Silkin's proposals) land that is owned by the commoners. The noble Lord said that if no common owners were to be found, the land should be taken over by the local authority. He will correct me if I am wrong, but I think common land means land which may be privately owned or may be publicly owned, but on which a restricted number of local people have certain clearly defined and limited rights in common. I believe that is what it means.

A large part of the earlier chapters of the Report is devoted to saying to what abuses completely free access by the public to such lands would inevitably lead. Paragraph 100 says that they rarely fail to leave litter about. Paragraph 101 speaks of a deliberate 'dumping of builders' refuse, old beds and similar things.' Paragraph 103 says If litter on commons increases with the coming of the public, so, too, does the risk of fire. Paragraph 104 speaks of the unauthorised parking of cars, and adds: where cars go there is also the danger that lorries will follow. Paragraph 108 says: Where cars and other motor traffic cross a common, sheep and cattle can no longer be safely turned out to pasture. These are only a few of the warnings which have been given by the Commission itself as to the dangers of the free and unrestricted access of the public to common land, and especially to common lands which are devoted to productive purposes.

I therefore thought it extremely surprising, having read all that, to find as one of the main recommendations of the Commission that access by the public to all common lands should be henceforth absolutely free. I entirely agree—I have no doubt that all of us will—as to the evils which might flow from any further private encroachment on common lands. I certainly think that the most vigorous steps ought to be taken to prevent this by whatever means are necessary. But I suggest that it is equally necessary to protect commons and commoners against the more evil results of free public access; otherwise the last state of those commons will be much worse than the first. Unless the local authority interests itself in enforcing its own by-laws, these by-laws are only too liable to be neglected. Therefore some provision—and here I strongly agree with the noble Viscount, Lord Gage—tc ensure that the local authority does its job seems urgently necessary in ally Bill which may be introduced to give effect to the recommendations of the Commission on this particular aspect.

Lastly—I am sorry to have kept the House so long—I come to the one other revolutionary proposal, or what I should call a revolutionary proposal, of which, from the point of view of the public itself, the advantages, I confess, seem to be extremely doubtful. It is to be found in paragraph 329. That paragraph begins: … in addition to the public rights of access for air and exercise which would extend over all registered common land, a local authority would be able to undertake a scheme for the management and improvement of a particular common to enhance public enjoyment still further. Then it goes on to enunciate the kind of thing which the Commissioners had in mind, such as the laying out of children's playgrounds and sports fields"— that sounds all right— including golf courses, … the construction of car parks, public shelters, sports pavilions, public lavatories and any other buildings … that might be thought desirable …"— that means, presumably, construction by the local authority. The local authority should also have the power to fence the land either temporarily or permanently. If the commoners objected to this, which is indeed a considerable invasion of their rights, the local authority would have the right to seek additional powers to limit or acquire the commoners' rights compulsorily. That might well mean, in plain words, as I read it, a new Inclosure Act on a vast scale; and the fact that this inclosure was to be carried out by a public body and not a private person does not, from the point of view of the commoner, make it any better. Moreover, if it is not offensive to say so, though I have the highest admiration for local authorities and for the efficiency with which they carry out many of their multifarious activities, I am afraid that neither correct judgment on aesthetics nor passionate attachment to the liberties of the individual citizen have ever appeared to me to be their strongest point.

I hope, therefore, that the Government, whatever decision they take, will not confer upon local authorities quite such drastic powers on this particular matter as those which appear to have been envisaged by the Commission. I hope, at any rate, that there may be some power to appeal from their decisions. On the whole, many of us would, I think, prefer the old overgrowth of brambles to the new overgrowth of public lavatories. But having said that, I hope that not merely will the Government take note of the Commission's Report (that was Lord Silkin's point), but that they will take some definite steps on the broad lines of the Report, especially for the purpose of setting up a register. Surely, here is a chance not only to deal with the thorny question of common lands which has plagued us for so long, but to redeem the reputation of Royal Commissions, which has become sadly tarnished in late years. For this, I am afraid, the present Government, like other Governments in the past, must bear their share of blame. It is an opportunity that I hope the Government will not neglect. If it is not grasped, it is not too much. I think, to say that another chance of the same kind may not occur for many years. For that reason, I should like warmly to support the Motion which the noble Viscount has moved.

4.9 p.m.


My Lords, I should like to join my thanks to those which have been so well expressed by other speakers in the debate this afternoon to the noble Viscount, for having given us the opportunity of discussing this important and interesting Report. If he has done nothing else he will have given us the benefit of one of those all too rare, but always delicious, interventions by my noble friend Lord Esher, who, as always, with his witty but most forthright utterances delighted your Lordships this afternoon. I am not sure that I have quite that enthusiasm for the rabbit which appeared from his speech, but otherwise I found myself greatly in sympathy with what he said.

This Report is, I think, one of the most interesting and valuable Reports which has even been produced by a Royal Commission. I was very glad indeed to hear my noble friend Lord Silkin refer to the admirable additional reports in the Appendices, which make most attractive reading, and the valuable commentaries by my old colleague in the University of London (now, of course, at Cambridge) Sir Ivor Jennings. I entirely agree with what was said as to the dilatoriness of Her Majesty's Government in having so far shown no interest of any kind in the Report, at any rate in public, and with the hope that, as a result of what is said this afternoon, some steps towards implementing the Report will be taken fairly quickly. I believe that there would be quite a number of people ready to join a trade union of members of Royal Commissions whose work on so many occasions has led to no tangible result; although, to do this present Government justice, I must say that they have done more in the way of implementing the Reports of some Royal Commissions than has been done in the past.

The essential element of course—and I am glad that the noble Marquess, Lord Salisbury, pointed it out in the speech to which we have just listened—although it is merely a procedural matter, is to make an authoritative register of the common lands of the country. That has been one of the important things lacked by all who have been interested in this subject in the past. I do not altogether agree with the noble Lord, Lord Silkin, on this question. I believe that it would be perfectly well within the bounds of the county councils to do this work. The problem of rights of way is in some ways even more complicated than the actual problem of the extent of the commons. My noble friend's own Bill put upon county councils, under the National Parks Act, a duty to carry out with expedition and efficiency the mapping of footpaths and rights of way; and there can be no doubt at all that those maps which now exist in county halls up and down the country are of the greatest value. I am quite sure that a similar kind of registration could be carried out reasonably easy by the very same people who did that work on footpaths so successfully only a few years ago.

This Report, more fundamentally, reflects the conflict which has been going on so long that"the memory of man runneth not to the contrary" between those who were anxious to get the commons into their own ownership and those who wished to maintain their rights over the commons. Your Lordships will all be familiar with the saying, the exact words of which escape my memory, to the effect that in the old times the law was against the man who stole the goose from off the common; but it has not been sufficiently against the man who stole the common from the goose. I believe it was the noble Viscount, Lord Esher, who pointed out that in that process almost all the really good fertile land which was common land got into the hands of people who took the commons away from the geese—a different kind of geese, on the second occasion, from those with whom we were concerned in thinking of the old saying.

The really important point is that in fact these commons provide the last reserves which are open to the great urban populations of this country for recreation in God's open air; and it is therefore of the greatest importance that the Commission have come down, and come down so emphatically, on the side of not allowing any further encroachment upon them. In Chapter IX, which is a summary of their recommendations, they point out that these commons are the last reserve of uncommitted land in England and Wales and ought to be preserved in the public interest; and it seems to me that that statement, which is of the greatest importance, should receive the emphatic endorsement of your Lordships' House and of Her Majesty's Government. It is for this reason that the amenities societies for whom the noble Viscount, Lord Esher, has spoken this afternoon—the National Trust, the Council for the Preservation of Rural England and the Commons and Footpaths Preservation Society, in particular, all of which gave evidence before the Royal Commission—have received this Report with such enthusiasm. I am sure that they would all wish us to express our great appreciation to Sir Ivor Jennings and his colleagues for the admirable Report which they have presented.

The Report, however, does not stop at that. It well realises that the rights of the public here are not incompatible with the reasonable use, and even the development, of much of this common land; and a very large part of the Report, as I read it, is taken up with proposals for enabling schemes to be promulgated by those who have pro-prietorial interests in this land. I am sure that the noble Marquess, Lord Salisbury, is quite right in saying that fundamentally, from the legal point of view, the land in most cases belongs to the lords of the manor and that the commoners, neighbouring farmers and others, have rights over this land, though not quite so clearly defined in many cases, perhaps, as he has suggested.

I think it is most important that in so far as this land is capable of being used it should not be lost to the community, and it seems to me that one of the most valuable aspects of the Report of the Royal Commission is that it makes very valuable proposals (as they seem to me) for putting forward schemes for the improvement of this land. I may be wrong, but I did not quite agree with the remarks of the noble Viscount, Lord Gage, suggesting that nothing of this kind could be done for twelve years. I do not read the Report in that way at all. It appears to me that as soon as the local authority establish their register any person who wishes to put forward a scheme can immediately submit to the local authority that the land concerned should be registered, and it can then go on to the register.


My Lords, I do not think I said that the Report postulated that nothing could be done for twelve years. I was saying that one of the difficulties which confronted Her Majesty's Government was the alternative of either doing nothing for the period of twelve years or doing something of a provisional nature. I said that in my opinion the Report was obscure as to exactly how the Commission envisage the answer to that question.


My Lords, the noble Viscount may be right, but it seems to me that anybody wishing to put forward a scheme for the improvement of a common could get it into operation in a much shorter period, if he had the keenness to get on with it. I agree very much with what was said by the noble Lord as to defining the rights of the public over these commons, a point made also by the noble Marquess. I felt that he had rather misunderstood the Report or perhaps had read it differently from me; because I do not read it as suggesting that the Commission wish to give the public completely unrestricted access to every common throughout the country. In fact, I should have thought it was perfectly clearly implicit in their proposals for schemes that that could not be so; because a scheme for the effective use of a common could not be made if the public have to be given completely unrestricted access subject to no conditions and no kind of control.


My Lords, I believe the words used were: We recommend that all common land should be open to the public as of right but subject to the general conditions set out below in paragraphs 318 and 319", which is a reference to the National Parks plan. My point was on the basis that it is for one person to apply for the application of the conditions. That is one thing. But if it is just a body of commoners, who probably are not very close to each other, who have to ask for the application of these conditions, probably nothing will in fact be done. Everybody's job is nobody's job. That is what I meant, and I thought that in practice it would mean completely free access.


My Lords, the noble Marquess may be right. I do not read it in that sense. We have to take it that at the present time the ordinary person who is not a commoner has no right on the common. There are metropolitan commons and others, commons owned by the National Trust, to which the public have rights of access. But the ordinary Common Law of England does not give people the right on to a common at all. I think we have to read it in that way. The Royal Commission are proposing that in future this last reservoir of land of this kind should, subject to reasonable terms and conditions, in fact be thrown open to the general public. It is these"reasonable terms and conditions" which may have partly to be laid down by local authorities which are given some kind of control. I think that the suggestion of my noble friend Lord Silkin was a valuable one. One could hardly expect the present Government to accept it as it stands, but clearly, in connection with the noble Viscount's suggested need to define the rights of the public (which I am sure that the noble Marquess, Lord Salisbury, would agree with), the local authority would be a very suitable authority to be brought in to define and control these rights of public access which I should have thought everyone would have agreed should not be completely undefined and restricted.

I think that those are the most important points. There are, as one would expect, a number of points of detail which, if a Bill were introduced, one would like to see dealt with by the Government in that Bill. I would suggest that one of some importance was proposed by the noble Viscount: the registering authority should have the same sort of duty as it has in respect of footpaths and rights of way under the National Parks Act, itself taking the initiative and setting out the known commons on its own register in the first instance instead of waiting for others to come and make proposals. I believe that the Royal Commission suggest that it should have the right. I would go much further and put the duty of doing so upon it.

Another small point is that the courts of quarter session have handled the appeals in connection with footpath cases, and so far as my own experience is concerned (perhaps I have a certain interest as a chairman of quarter sessions) I felt that my own court had dealt with a number of cases under the National Parks Act very efficiently. I should have thought that perhaps the magistrates and quarter sessions would be better to deal with these problems than the Land Tribunal, as is proposed. But, subject to a number of points of that kind, I find myself an enthusiastic supporter of this Report and I hope that the Government will find it possible to implement it, and to implement it without delay. May I say to the noble Earl who is to reply that I had arranged my work in order to be in the University a little later on; and if before the reply I leave your Lordships' House, I hope that both he and your Lordships will forgive me.

4.24 p.m.


My Lords, it is a matter of great satisfaction to Her Majesty's Government that my noble friend Lord Gage should have chosen the Report of the Royal Commission on Common Land as the subject of to-day's debate, because I am now able to reaffirm in your Lordships' House the welcome which the Government gave to this Report earlier this year in another place. It also enables me to add a personal tribute to Sir Ivor Jennings and his colleagues for the masterly way in which they discharged their formidable task. The noble Lord, Lord Silkin, I believe, called it a monumental Report; and large-scale adjectives are certainly merited by this Report. It is a pleasure to read this Report, which, despite the many complexities of the subject, is at once thorough and clear. No one ought to dismiss the problem of common land as an esoteric study for the lawyer and antiquary, for, as this Report amply demonstrates, it concerns a far wider public. I hope that many members of the general public will recognise this and read the Report. They will find it eminently readable, and they will not be disappointed.

Your Lordships will probably remember that it is only a few weeks since my right honourable friend said in another place that the Ministry were actively considering the Report in the light of comments received from various organisations and bodies. I can assure my noble friend Lord Gage that the Government are keenly anxious that there should be no avoidable delay in announcing their conclusions. The noble Lord, Lord Silkin, and, I think, my noble friend Lord Salisbury, spoke of the need for a trade union for Members of Royal Commissions. I can say at once that there is no intention whatever of pigeonholing this Report, simply putting away all this mass of information and not acting on it.

No one who has toiled through the massive volumes of paper and the obscure legal issues to which even the most straightforward of common cases can so often give birth could doubt the genuine desire of all concerned to simplify the present state of affairs. If there were such a doubter, surely he would be convinced after reading that most daunting third Appendix written by Sir Ivor Jennings on the complex and diverse problems of the law so cogently set out by him. Indeed, the first chapter of the Report in which the problem is slated, gives vivid illustrations of the frustrations that beset anyone who tries to do these things with a common. Noble Lords may remember in paragraph 21 the imaginary cricketers who wished to build a pavilion on the village green; and in paragraph 24 the imaginary parish council who wanted to plant some trees on a waste corner of a common. Those are typical examples of the frustration. But with so intricate a subject I am sure that it would be a mistake to be guided principally by considerations of haste. We should be failing in our duty if we did not first examine most carefully the implications of the Commission's own recommendations and the alternatives and the variants which have been put to us. It is with this in mind that I have been so interested in the views that have been put forward this afternoon. The Government will give these the closest study in their further examination of this Report.

Your Lordships will not need to be reminded of the immense antiquity of common land. In the historical Appendix to the Report, Dr. Hoskins claims that generally the common lands are the oldest institution we can claim to possess; older by far than Parliament. He quotes in the first paragraph of his essay that Port Meadow at Oxford is the oldest surviving institution in that city, older by centuries than the University, so the common lands of England and Wales are generally the most ancient institution we now possess; older by far than Parliament, older even than the manor within whose organisation and control they subsequently fell. If I may be forgiven a rather bad pun it is a fact in this case that commons are indeed older than the Lords. The law relating to common land and common rights is scarcely less ancient. The Statutes range from 1285, I am told—the Statute of Merton—right up to the Town and Country Planning Act of this year, 1959. Although this whole edifice of law may look so vast, so rambling, almost so ramshackle, we must be certain that if we demolish it root and branch—and that is what the recommendations of the Royal Commission refer to; a root-and-branch demolition of the present legal structure—its successor will be fully capable of standing up to the test of time.

The noble Lord, Lord Silkin, did really suggest an extremely extensive root-and-branch reconstruction of the law. If this law is to be repealed wholly, he suggested that in one sweep all the commons—other than those, I think, of which the noble Viscount, Lord Esher, had control—should go over to the local authorities. I really doubt that quite such a drastic solution will be the one that will ultimately appeal to Her Majesty's Government: and, of course, that is a very different solution from that which the members of the Royal Commission propose. The noble Viscount, Lord Gage, said that the late Lord Jowitt had wanted to send the Anglo-Saxon laws packing, We must be careful that, if we do send the Anglo-Saxon laws packing, we put something worthy in their place, and that we do not finish up by making matters worse. That is a matter which we must guard against.

Nobody can deny that the present law perpetuates a mode of land tenure and agricultural management which is, in general, out-dated. As the Commission have shown, in all but a very few places the manorial system has gone, and the memory of the rights and of their holders has vanished. In earlier days this was not so. The laws were then mainly concerned with problems arising from common land as part of a living system of agricultural management. Then came the laws dealing with inclosure, as systems of farming changed. History up to the middle I suppose, of the nineteenth century records an increasing pressure of rising population on a fixed supply of land for food production. Thereafter, common land came to be thought of increasingly not so much as an actual or potential economic asset, but as an open space—a means of providing"natural" enjoyment and recreation to the overwhelming majority of people, who were by now living in the industrial towns.

If I may for one moment revert to the delightful speech of the noble Viscount, Lord Esher, he did not have to remind us about this, because it is set out very clearly in the Report, in paragraph 109, how difficult it is to define what is"natural." I do not propose to follow the noble Viscount in his panegyric on the rabbit—"that cheap and efficient mowing machine," as I think he described it. Neither do I propose to follow him all the way into his exposition on the difference between butterflies, I think it was, and poisoned brussels sprouts. But, in raising the question of the Maidenhead Thicket, he did raise something which is very relevant and very true. We are perhaps inclined to look upon these close-cropped downs—in Kipling's words, I think, the close-bit thyme that smells like dawn in paradise"— as a natural product, but it is not. The natural product will revert ultimately to high forest through scrub; and the Maidenhead Thicket is indeed a very good example of it, as the noble Viscount mentioned.

The pressure to inclose was therefore reversed from about the middle of the last century, and Parliament made it progressively harder for common land to be inclosed. It is perfectly true that the concept arose that inclosure and works on common land should normally be approved only if it was established that they contributed to the benefit of the neighbourhood. In this century, that picture has been revived twice—in the 1914 war and in the 1939 war, when temporary inclosure for food production has again been the order of the day. But who can be sure what should be the emphasis to-day, let alone what should be the emphasise to-morrow? And never forget, as has been said by several noble Lords in this debate, that the commoners' economic interest and the public's interest in recreation and access have often come into conflict—and doubtless will again. Paragraphs 143 and 144 in particular are vivid. I recall on the one hand the words, Animals paddle about amongst cans and broken bottles… On the other hand, cattle, sheep, and horses pastured on unfenced commons, whether they are on remote Dartmoor or on the much nearer Epping Forest, can cause great trouble and danger to the legitimate users of the highway and to householders living on the verge of such commons.

Thus, there has now come to be a multiplicity of interests in common land. At one extreme there is the metropolitan common, to all intents and purposes a public park or an open space: at the other extreme there are the upland grazing commons of the North, South-west and Wales, stretching over thousands of acres. The noble Marquess, Lord Salisbury, referred us to those figures. There are tables on pages 25 and 26 of the Report, and the main paragraph, which perhaps qualifies it, is paragraph 49. That states baldly: Our investigations have shown that no one knows for certain exactly how much common land there is in England and Wales. It was only by the Commissioners' setting on foot a most careful and painstaking survey—and great assistance was given to them in this survey by local authorities—that ultimately they came to the figure of about 1½ million acres of common land in this country—as the noble Viscount, Lord Gage, said, an area as big as the whole of Devonshire. Perhaps the only thing we have to be thankful for is that, so far as we know, there are in Scotland no common lands as we know them in England for us to deal with by legislation.

But, as the noble Viscount, Lord Gage, says, this is by no stretch of the imagination a homogeneous problem. The extent, use, forms of husbandry and management of common land, and the interests in it, vary from one county to the next, and also often from one common to the next. In addition, there are a great many public and private interests involved: nature conservancy, national defence, forestry, water conservation and local government at all levels are only the most outstanding of them. To add to our difficulties, we must remember that on urban commons (and this is a point which the noble Lord, Lord Chorley, was making) the public have a statutory right of access, but on rural commons they have no such general statutory right.

The Commission, while recognising these differences, proposed comprehensive legislation which would apply mutatis mutandis to any common land, whatever its character, anywhere in England and Wales. I do not suggest that this was mistaken, but the pros and cons of this course, as opposed to the possibility of differentiating in legislation between the various classes, must be carefully weighed. The noble Marquess, Lord Salisbury, was wondering, for instance, whether we should split the whole matter into two, as I understood it, and deal with the smaller commons—the village greens—with one block of legislation, or in one set of proposals, and with the large upland commons—the grazing commons of the mountain districts—at another time.


I did not say that there should be two Bills, but I thought they were different problems.


Yes; and indeed they are different problems. If one follows that argument logically, it might be that they should be tackled in two different measures of legislation. The rights and uses of common land, both private and public, have grown gradually over many long years, and it will clearly be a most serious step to adopt any measure which may result in depriving an owner of rights that have descended to him through many generations.

May I now turn to the Commission's detailed recommendations for a moment? We must remember that they can be divided into three main groups. The first group is of those recommendations which provide for the ascertainment and the recording and determination of interests in common land—the registration procedure. Secondly, there are those which are directed at securing and perpetuating the status of the land and public enjoyment of it through the conferment of a right of access. It would be the conferment of a right of access in relation to rural commons, where there is no such right at the moment. Finally, there are those which would enable the interests thus established, and in certain circumstances local authorities also—many noble Lords do not welcome that procedure; the noble Marquess, Lord Salisbury, for instance, did not welcome that procedure—to undertake schemes of management. When we are considering these three blocks of recommendations, we must always keep at the back of our minds, first, the complexity and magnitude of the law itself and the need for ensuring that in sweeping and garnishing we are not simply allowing seven other laws, perhaps more incomprehensible, to enter in; secondly, the scope of any reforming measure—the matter is one of timing or phasing: should we deal with it all at once or should we propose, for instance, to have registration legislation first?—and thirdly, the regard to which public and private interests are entitled.

In its first group of recommendations, the Commission propose the registration of common land and of rights of common and of ownership. Under these proposals, the local planning authorities (county and county borough councils) would be commons registration authorities. Eight years would be allowed for claims, after which any unregistered claims would be held to have lapsed, and a further four years would be allowed for objections, after which all undisputed claims would be held to be good. The Commission also recommended that disputes should be heard by a commons commissioner, with a right of appeal to the Lands Tribunal.

It is fair to say that these proposals have commanded a wide measure of support among the bodies who have been consulted. There have been some criticisms, but it seems to be generally accepted that a definitive record of land, rights and ownership is the foundation for further positive action. I think that all noble Lords who have spoken this afternoon have agreed with that. The opinion has been expressed to us—and I gather that the noble Marquess, Lord Salisbury, would perhaps be in favour of this—that it might be possible to legislate first for registration and associated matters. We are studying this closely, and I am grateful for the views that have been expressed on this matter by noble Lords to-day. Although I am not in a position to express the Government's considered opinion on the merits of this approach, I should like to say that it is quite compatible with the three major considerations I have already mentioned. A separate registration measure would pose a number of difficulties, but it is fair to say that these would still be there if we had a comprehensive measure.

I think I must mention some of the difficulties that have occurred to us about the question of registration. I do so in no spirit of criticism of the Report, but simply because we must scrutinise the recommendations thoroughly. There have been suggestions that the eight and four year periods recommended by the Commission are too long. The noble Marquess, Lord Salisbury, used the phrase,"twelve long years" and the noble Viscount, Lord Gage, went so far as to draw a parallel with Part VI claims under the Town and Country Planning Act, 1947. I very much doubt if that is a valid comparison, but I admit that it does seem a long time, if we are thinking of twelve years, when claims can be registered under other legislation in two. But we must remember that under the Land Registry procedure, a claim to possessory title to freehold land becomes absolute only after fifteen years.

This leads one to questions which clearly need the most careful consideration. What should be the minimum period for objections to claims to ownership of land? Could there be different periods for claims that land was common, claims to rights and claims to ownership and for related objections? Another most important point on registration procedure is: could we devise arrangements whereby at least some disputes could be determined before the last day for objections—that is to say, could we relate the period for objection to the date of the claim?

Again there is the question: what exactly should be the function of the commons registration authorities? The noble Viscount, Lord Gage, elaborated that at some length. He wanted local authorities to have a good deal more power as commons registration authorities than is recommended by the Commission. I go into these details only to illustrate to your Lordships both the way in which we have to follow up the Commission's recommendations and the care that we must take if we modify any of them. We may find ourselves in greater difficulty than if we take the recommendations as a whole.

I turn for a moment to the form and substance of claims. As has been brought out in the debate, the Commission recognised that a safeguard was needed against frivolous and vexatious claims—I would add also malacious claims—that land was common. They also suggested that it should be a criminal offence to register a claim of this kind without just cause. For the rest, they were content to leave it to self-interest to act as a corrective to false or exaggerated claims. We shall have to consider this matter carefully. As I am sure the Commission realised, we have to strike a balance between protecting private interests and not making the arrangements look so fearsome that people will be discouraged from making claims at all. As regards the registration of claims to ownership of land, I think that there is weight in the argument that a degree of formality is necessary, since uncontested claims would eventually be held to be good. As regards claims to common rights, perhaps less formality would be necessary, on the Commission's hypothesis that the owners of the soil and other claimants to rights will be watching the position.

The Royal Commission dwelt at some length on the meaning of common land. On page 24, paragraph 78, they listed no fewer than eight categories of land to which they paid attention, without pretending that this was exhaustive. Their final recommendation on the definition of common land, including village greens (page 127, paragraphs 402 and 403), is some 24 lines long. Moreover, we have had other alternative definitions put to us and we are hampered because existing Statutes use different definitions, some of which are not free from doubt. I think that this is a good example of how, without the greatest care, it would be possible to make confusion worse confounded.

I do not want to detain your Lordships much longer, but before I leave the registration proposals, I should like to quote a line or two from the Report (paragraph 311). It says: The recommendations in the previous chapter"— that is, on registration— are necessary in themselves in order to free all interests in common land from the doubts that now handicap them. They are also in a sense preliminary steps for enabling formal schemes for the management and improvement of common land to be promoted with confidence and at little cost. I think the Government agree with that.

Perhaps I can go briefly to the other recommendations, which were possibly the most important: first, the preservation of common land. The Royal Commission recommended that all common land be preserved as such. Some people have argued that it is unrealistic to perpetuate totally the distinction between common land and other land, and to perpetuate the procedures whereby common land can be alienated only subject to Parliamentary approval. As I understand it, their argument is not against the preservation of common land in general, but that there may be cases where, because there is sufficient land in the neighbourhood for air and exercise, it would be in the national interest that common land should be used for urban development—and this was brought out in the debate—rather than farm land, and that in such cases it would be inequitable to make such development subject to the expense and trouble of Parliamentary approval. All I can say about it is this: presumably the Commissioners considered those arguments, and, because they are not contained in their recommendations, they appear to have rejected them.

The second important point to which I must direct your Lordships' attention concerns the Royal Commission's recommendation on the public having a statutory right of access to all commons. Opinion is not unanimous as to whether the statutory right of public access should be automatically extended to all common land or whether it should be extended only to certain classes or to commons individually. The noble Marquess, Lord Salisbury, raised this quite emphatically. He, I think, felt that there was considerable doubt as to whether public access should be statutorily widened to include all common lands. The noble Lord, Lord Chorley, on the other hand, took the contrary view, and felt that this was an essential and correct recommendation of the Commissioners Thirdly and lastly, the Royal Commission recommended that the interests in common land, and in certain circumstances local authorities also, should be able to promote schemes for more effective management. I would remind your Lordships that earlier legislation dealing with inclosure and regulation schemes has, in many instances, become increasingly defective for dealing with the present-day situation, as our way of life has changed—and I need only mention that almost all the existing substantive legislation dealing with commons dates from a time before the motor car. So we must have more flexible methods of dealing with the management of commons.

I do not think that I should detain your Lordships longer on the details of this Report, and I simply say this in conclusion. We have had a deeply interesting debate this afternoon and I am grateful for the valuable contributions which your Lordships have made. I only wish I had been able to be more positive in replying to them, but I think I have said enough to demonstrate the difficulties with which we are confronted and the reasons why it really is not feasible for us to attempt to formulate in a few moments an alternative to a great body of law and custom which has been built up over many centuries. I am sure your Lordships will realise my difficulty in accepting the Motion of the noble Viscount, Lord Gage, in the precise terms in which it appears on the Order Paper. For the Government must be free to formulate their own proposals to deal with these great problems in the light of their studies of this Royal Commission's Report and the comments they have received and will receive. My right honourable friend will, for instance, I know, greatly welcome the opportunity to study your Lordships' views on the Report as they have been expressed this afternoon.

May I say, in asking most respectfully if the noble Viscount could see his way not to press this Motion, is it not perhaps a little significant that, on the one hand, he puts on the Order Paper a Motion that the Government should introduce legislation based on the recommendations of the Commission, and yet in his very able and closely-reasoned speech he gives reasons why some of the most important of the Commission's recommendations should, in his view, not be followed? He is not quite clear from the Commission who does what and when—I think that was his phrase. I should not go so far as to say that the Government are not clear as to who does what, and when, as suggested by the Report, but I think this is a good example of why we should make haste slowly and not do anything without the most careful consideration of this tricky matter. But, my Lords, I can and do give your Lordships the assurance that, though the Government are not yet ready to submit concrete proposals and the necessary legislation to Parliament, they are pressing ahead urgently with the detailed study of the Report and its recommendations and with the widespread consultations which are so necessary in a matter so complex and far-reaching as this.

4.57 p.m.


My Lords, I must thank noble Lords who have taken part in this debate. It has, I think, been an interesting debate, if a somewhat disappointing one. I had hoped to confront my noble friend with a body of opinion all saying more or less the same thing; but that has not been so. The noble Lord, Lord Silkin, did not like the Report at all. My noble friend Lord Esher said that he supported the Report, but for reasons which, although they conjured up a most attractive and Arcadian picture of what life on the commons might be, contained features which I do not think would commend themselves to either of the bodies with which I am associated, with particular reference to rabbits.


If the noble Viscount will allow me to intervene, I do not want it to go on record that I do not like the Report, because I think it is excellent. It is the recommendations that I am not in agreement with.


I must accept that somewhat delicate distinction. My noble friend Lord Salisbury also supported the Report, but he had a good number of reservations. Therefore, I do not think I can press this Motion. But perhaps my noble friend Lord Waldegrave will allow me to say this. I know that he has to make these non-committal speeches on occasion, but I also know that he is a man of great practical experience and knowledge on a number of agricultural matters. If I said that I hoped his Department would not make too much heavy weather of the difficulties, and, in the absence of my noble and learned friend the Lord Chancellor, were not too much frightened by lawyers, I do not know that he would absolutely in his heart of hearts disagree. I beg leave to withdraw my Motion.

Motion, by leave, withdrawn.