§ 4.9 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Mitchison.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The Lord Ailwyn in the Chair.]
§ Clause 1:
§ Registration of commons and town or village greens and ownership of and rights over them714
1.—(1) There shall be registered, in accordance with the provisions of this Act and subject to the exceptions mentioned therein,—
(a) land in England and Wales which is common land or a town or village green;
and no rights of common over land which is capable of being registered under this Act shall be registered under the Land Registration Acts 1925 and 1936.
§ (2) After the end of such period, not being less than three years from the commencement of this Act, as the Minister may by order determine—
- (a) no land capable of being registered under this Act shall be deemed to be common land or a town or village green unless it is so registered; and
- (b) no rights of common shall be exercisable over any such land unless they are registered either under this Act or under the Land Registration Acts 1925 and 1936.
LORD MOLSON moved, in subsection (1), to insert as a new paragraph after paragraph (6):
() the property, with acreage, to which it is claimed such rights attach
§ The noble Lord said: As is well known in the case of commons, the land of the common is usually owned by an individual, frequently the Lord of the manor, and various persons have common rights over the land, whether of pasturage or of cutting timber or turf. In many cases that right attaches to the ownership of land usually in the vicinity of the common land; and whoever acquires that land acquires the rights of common over the common.
In this Clause 1t is provided that land which is common land or a town or village green and the rights over that land should be registered; and it appears extremely desirable that there should be registered not only those rights but also the land to which the rights attach. Indeed, it is difficult to see how it is possible to register the rights if, at the same time, there is no registration of the properties to which the rights attach. I think that this is in line with what was referred to by the Parliamentary Secretary in his winding-up speech during the Second Reading debate, when he was speaking about the possible need for widening the powers of making regulations and said:
We are not quite certain … that we have provided for that being indicated,
He was referring to his earlier statement that:
There may be questions of registering ownership of what I suppose one would call
dominant land—that is to say, land to which these rights of common appertain."—[Official Report, Vol. 263 (No. 36), col. 116, February 9, 1965.]
It is in order to cover these registrations that I move this Amendment. I beg to move.
Page 1, line 10, after ("lands") insert the said paragraph.—(Lord Molson.)
§ LORD CHORLEY
I should like to support the noble Lord who has just moved this Amendment in what he says. It is very true, in relation to these rights, that they must attach to land; and, normally speaking, there will not be any difficulty about that. Everybody knows that one of the objects of the Report of the Royal Commission and of this Bill is to obtain clarification. This is undoubtedly one of the areas where clarification is required. Many of the rights claimed are very vague, and the land in respect of which they are claimed is often vaguely defined, too.
Though I do not say it takes place very often, or that it could do so, there is room for a certain amount of rather sharp manoeuvring in relation to these matters. Later on in this Bill we have provision—I think it is in Clause 14—relating to quantification of these common rights particularly in regard to grazing. It may easily be that the actual statement as to the area of the land which claims to have these rights of grazing will throw a good deal of light on the quantification of the grazing rights themselves, and it would be of the greatest help, I suggest, in dealing with the problem of quantification to have the actual area of the land in respect of which the common rights are claimed registered to show that there really will not be room for this type of rather sharp manœuvring. Therefore I support the noble Lord in this Amendment.
§ The JOINT PARLIAMENTARY SECRETARY, MINISTRY of LAND and NATURAL RESOURCES (Lord Mitchison)
I think that the objects of the noble Lord who moved this Amendment and of the noble Lord who has just spoken in support are also those of the Government in this matter. I am afraid I cannot quite accept the Amendment in this form, for a reason that I will explain. The Committee will see that there are certain things which 716 must compulsorily be registered, and in subsection (2) there follows a consequence if they are not registered: they lapse. We propose that this dominant land, if I may take that phrase, should be noted in the register, but not that it should be one of the things that must be registered. It is rather unsuitable for the purpose for other reasons, in that sometimes it requires a great deal of definition.
What I propose to put into the register will be a description and a postal address of the holding and a list of the ordnance survey parcel numbers and relevant acreage. The Amendment I had in mind and which now appears on the Marshalled List is an Amendment enabling us to call for a map where further definition is necessary. I hope the noble Lord will take it from me that, having listened to what he has said and to what my noble friend has said in support, I am quite sure that the peril he has in mind will be sufficiently met, and will be met in the form of a regulation dealing with what should be included in the register.
I should like to take this opportunity—and I hope I am not transgressing the rules of procedure too much—to say a general word or two about the Amendments on the Marshalled List. There are not many that I can accept in their present form, but that is hardly the point. This is a Bill on which I believe there is no substantial difference of opinion. I think, with some minor conflicts of interest, we are all agreed on the main purpose of the Bill, and we all consider it necessary that it should be brought into operation as soon as possible. So what I propose to do, subject to the Committee's wishes in the matter, is this. When we come to Amendments where there is really any question of doubt, though I cannot give any undertaking that we shall accept it, I will ask that the Committee take it from me that I will look again into the matter. Then if the Amendment is put down again on the Report stage or, if the Amendment be put down on behalf of the Government on the Report stage, we can revert to a more detailed discussion.
This is an extremely difficult Bill in minor and sometimes rather tedious respects, and we have given it a great deal of consideration. Quite exceptional trouble has been taken over it by those 717 who have been advising me in the matter, and I think we now have it right. However, since even the wisest may sometimes err we should like the opportunity to look at a number of points again. I have said this with the object of shortening the time of the Committee, and I would ask the noble Lord who moved the Amendment whether he can see his way to withdraw it, in view of the pretty clear indication I have given of the Government's intentions in the matter, and also in view of the practical difficulties of the Amendment in its present form. If, in this or in any other case, the noble Lord (and I know him to be a most responsible person) says to me "I will withdraw it; but I should like an undertaking that it be looked at again", then I will give that undertaking. In the best judgment I can give of the matter, this particular Amendment is not a case where a further look is needed; but if the noble Lord calls on me to look at it again I will gladly do so.
§ LORD MOLSON
I am most grateful to the Parliamentary Secretary for what he has said, and for the spirit in which he has indicated he is going to conduct the Committee stage. There is no doubt that the Bill is difficult to understand and amend. This is of such a singular degree of complexity that it is almost impossible for noble Lords, without the assistance of Parliamentary Counsel, to amend these matters. I should also like to say how grateful I am to the Parliamentary Secretary for the way he has communicated with me and helped me about one or two matters. I am afraid that our discussions on this Bill may take a little time, but we will try to reduce them to a minimum. Having said that, I naturally accept the noble Lord's assurance and beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 4.21 p.m.
moved, in subsection (2), to leave out "less" and insert "more". The noble Earl said: I rise to move the Amendment in my name on the Order Paper, at page 1, line 15. I always find it rather alarming to see on the Paper an Amendment to leave out one adjective and replace it with another diametrically opposite to it, but in fact this Amendment is not quite so devastating as it may appear on the face 718 of it. It may be to your Lordships' convenience, if I relate this Amendment to No. 19, which has not quite the same wording, but is similar in content.
The Amendment refers to registers of common land and those who have claims on this land. Subsection (2) says thatAfter the end of such period, not being less than three years from the commencement of this Act, …and so on. That means that the registers will close in not less than three years. But it could mean three years, five years, ten years or twenty years after the commencement of the Act. I understand from the general tenor of the speech of the noble Lord opposite on Second Reading, that it is the wish of Her Majesty's Government to cut down the period suggested by the Royal Commission. If we were to adopt the words which I suggest, it would mean that the registers would be closed three years after the date on which the Act came into operation. This would give the Act a sense of urgency. Whereas, if it is left as it is, there is the possibility that it will merely give the Minister power to effect the registrations without any obligation to do so. The Minister, quite rightly, because of the need to prepare the necessary regulations, has to retain power under Clause 24 to state when the Act should come into force. I think that that is perfectly fair, but I wonder whether it is desirable that he should also retain the power to extend the registration period. I beg to move.
Page 1, line 15, leave out "less" and insert "more".—(Earl Ferrers.)
§ LORD MITCHISON
I hope that your Lordships will not think I am being anything but quite sincere when I say that I accept the spirit which moved the noble Earl to put down and move this Amendment, but I do not think that there is any need for it. We intend, if we can, to keep the registration period to three years. This is a considerable reduction, for the reasons which I tried to explain in my Second Reading speech, upon the period proposed by the Royal Commission; and we think that is right. But when it comes to carrying out these rather complicated operations, I suggest that we must trust the Minister in charge a little. After all, the Government have 719 introduced this Bill when there are a good many other measures pending, and we have patted ourselves on the back, I hope fairly tactfully. I can assure the noble Earl that we do not intend to delay. We think that anything less than three years would be too short. It is a question of holding the balance between various interests. We do not intend to go beyond the three years unless we are obliged to do so; but in a matter of this sort one cannot say for certain that something or other may not turn up to make some small delay inevitable. Although I have often said the opposite from the Opposition Benches in another place, I think that this is a case where we must trust the Minister in charge, who has shown a certain good will on this point, to make his own timetable having regard to three years as a mimimum. We have to try to achieve a balance between speed, which we always want, so far as possible, and doing things so fast that some people do not have time to keep up.
The noble Earl may remember that in practice the three years is divided into two parts—eighteen months during which there is no charge and during which we hope to get the majority of claims in; and a further eighteen months' period during which there will be a small charge, which we hope will bring in the laggards, although in many cases the laggards may be laggards for good reasons. I really think that three years is the practicable minimum. I hope that on that assurance of good will, quite a genuine one, the noble Earl will feel able to withdraw his Amendment. This has been considered in considerable detail from various points of view. Again, as on every other Amendment, I will look at it again, if the noble Earl wishes me to do so, but I cannot undertake to do anything. I think that it is unlikely that this proposal would be accepted.
§ LORD CHORLEY
Before the noble Earl indicates his acceptance or refusal of the Minister's offer, as we are at this point discussing the question of the period for claims, perhaps your Lordships will allow me to make a few remarks about this matter. As the Minister has indicated, the Royal Commission, although they advised a minimum of three years, stated that in their view a rather longer period might be required. I am inclined to agree with the Government's decision to fix, in 720 the regulations, a period of three years. But, as I said on Second Reading, there is undoubtedly a real danger here. In the amenities movement we have found over the last years, that many local authorities who have been burdened (I do not know whether that is quite the right word) with these matters are keen and enthusiastic about such duties as registering rights of way and footpaths, and they get on with the job. But in some parts of the country we found that local authorities were far from keen or enthusiastic, and sometimes, it seemed to us, were deliberately holding their hands in these matters. How far that is true, it is difficult to say, but that is certainly the impression which we in the amenities movement have.
I understand that here the main burden is to fall upon the local authorities. It may well be that at the end of three years there may be a great many commons and commons rights which have not been registered and, therefore, will be lost for ever, unless some sort of provision is made in the regulations to be made by the Minister giving him a discretion, in proper cases, to extend the period. I am not at all sure that this is right, but a suggestion has been made to me upon which I should be glad to have the Minister's view, either now or at some later stage; and I am perhaps taking him a little by surprise, as I have only recently had an opportunity of considering this point. In the clause which deals with regulations, Clause 18, subsection (3) says:The regulations may prescribe the payment of a fee not exceeding five pounds on an application made after the end of such period as may be specified in the regulations.This in effect suggests that there is somewhere to be a delay clause, so to speak. If that is the intention (and it is difficult to understand why this provision should be in the clause unless at some stage or another in the drafting there was the intention specifically to give to the Minister discretionary power of this kind) it should be stated there. That paragraph seems to me to suggest that the draftsman had at some stage or other thought that there should be some discretion of this kind.
But whether the draftsman thought that or not, I hope your Lordships will agree that it would be wise that the Minister should, in drawing up his regulations, provide a discretion. It is a very common thing indeed, as those of your 721 Lordships who have practised in the law will be aware, that in these cases where limitation periods are prescribed, whether for appealing from one court to another, exercising some right under an Act of Parliament or otherwise, the court which deals with the matter is given a discretion, in a proper case, to extend the period. All sorts of things can go wrong, even if the local authority is a keen one. Three years is quite a short period; it is astonishing how rapidly three years runs by. In all these businesses, those of us who are in the law know well that longer periods than three years very often run out before busy men concerned with these things appreciate what is happening.
For this reason, it is valuable to give a discretion to the Minister, which can be done quite easily. It is only a matter of enabling himself in a proper case to exercise a discretion. I hope, therefore, that the Minister will be able to tell me whether he thinks Clause 18 (3) does provide for some sort of discretion of this kind, and, in any event, whether he will discuss with his right honourable friend the desirability of dealing with this matter in the regulations and providing some sort of escape clause, which I am sure everyone who has given attention to this subject will think eminently desirable.
§ LORD MITCHISON
Perhaps my noble friend has gone some way from the actual Amendment which we are now discussing; and I think he indicated this himself. But I can tell him, as indeed I told your Lordships on Second Reading, what the purpose of fixing the fee of £5 is. The intention is that there should be two periods of registration, each of one and a half years, following each upon the other, and each of them followed by a period for objections; and the hope is that the first period should collect most of the claims. It is to encourage people to claim at once that there is no fee in the first period; and the reference in Clause 18 to the fee of £5 is in respect of applications made during the second period. There is no provision in the Bill, either in the regulation-making power or anywhere else, to enable the Minister to extend the period he fixes for registration.
I find myself standing on the other leg this time. This is not a power that 722 I think, in the circumstances of this case, one ought to give to the Minister. It is perfectly true that it is given in some cases; but, equally, it is not given in others. In the ordinary Statutes of Limitation, for instance, there is no such provision. We have to try to hit the right period and make certain that it is not so short that anybody can fail to assert his rights by mere inadvertence or merely by being too slow in whatever preparations he may have to make. That is one side of the picture. On the other hand, one has to remember that if the registered rights are not asserted within the prescribed time, then they lapse. Therefore, if you give power to extend the period, you have a state of uncertainty at the end of the period when you really do not know whether the rights, supposing there to be any, still exist or do not exist. I think when you are legislating to the effect that, failing registration, certain rights should lapse, people are entitled to have a time fixed at the beginning of the period during which they must register, and there ought not to be any extension of it.
I say that to my noble friend. My reply, as were perhaps some of his questions, is a bit wider than the Amendment. If he would agree to put down a suitable Amendment on Report, we would, of course, consider it with the additional care with which one considers any proposals made by noble Lords who have long been conspicuous for their activities to safeguard the amenities of the countryside. But, for the moment, my definite feeling is that I ought not to have refused this Amendment, as I have, had I been willing to accept what was put forward by my noble friend.
I stand corrected: there is power to extend in Clause 19 (1); I had forgotten that. At any rate, I feel rather doubtful whether it should be used in a case of this sort. Perhaps the least said the soonest mended, and I had better invite the noble Lord, if he would be so good, to withdraw the Amendment or tell me that he would like me to look at it again.
§ LORD CHORLEY
As the Minister has, to a large extent, been replying to me, may I say another word and ask him whether he will look at this a little more closely in the interval? He suggested that I, or somebody, should put down an 723 Amendment on the next stage which would enable us to discuss at greater length the proposal I am making for giving the Minister discretion to extend the time. I was not at all clear what he meant by saying that there was some power under Clause 19. I should have doubted whether that was so. But Clause 19, I think, shows that the regulations can be amended from time to time. It seems to me most undesirable that an Act of Parliament should begin to go into details as to what regulations are to contain, which, in effect, the Minister is asking us to do by means of the Amendment which he is suggesting we should put down. It is, I think, much better to get a ministerial undertaking that he will look at problems of this sort when the regulations are being drafted, because it is possible to do things in regulations which are very inappropriate in an Act of Parliament. Much more elasticity is possible in regulations, and I should have thought it better to do it in that way rather than by means of statutory directions to the Minister when drawing up his regulations that he is to do this or that, because it removes the discretion which it is important that he should have.
§ LORD MITCHISON
May I be spared a moment? The reference in Clause 19 must be to subsection (1), that an order—and this is done by order—may be varied or revoked by a subsequent order. It is a little different from the kind of thing I had in mind, and I think a little different from what my noble friend had in mind. That is the only possible reference that I can see in Clause 19, and I regard that as a power which one would have to be very careful about exercising in relation to any individual case. It is not, I think, really intended for that purpose. Therefore I am not as much corrected as I thought I was.
I can assure my noble friend that we will consider what he has said, but I doubt whether anything in the Bill, certainly as regards the regulation-making powers, really gives a power to extend in the sort of case he had in mind—that is, the case of somebody exceptionally late for some good reason. But we will certainly consider it and see whether anything can be done. Perhaps the noble Lord would consider, in his turn, putting 724 down an Amendment on the Report stage to indicate quite clearly what it is he requires.
The noble Lord, Lord Chorley, has certainly taken us into rather deeper waters than my modest little Amendment had anticipated. They evidently befouled the noble Lord, Lord Mitchison, although he succeeded in extricating himself, and I do not intend putting my feet in them as well. All I would say is that the object of my Amendment is simply to ensure that this Bill, once it becomes law, is proceeded with; and if the noble Lord gives the assurance, which he has done, that the Government really mean to get on with it and bring it into operation, then that suits my case, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.43 p.m.
§ LORD MOLSON moved, in subsection (2) (b), to leave out "or under the Land Registration Acts 1925 and 1936." The noble Lord said: I mentioned before that I have been helped in preparing these Amendments by correspondence with the Parliamentary Secretary, and as our relations in the matter of this Bill are so amicable I am sure he will not object to my quoting from the correspondence, in order to sec whether this Amendment is not, in fact, exactly in line with the Government's intentions. It is the case that, whereas land in certain parts of the country has to be registered under the Land Registration Act, 1925, Section 70 defines rights of common as an overriding interest, and therefore they bind the land without any necessity for registration. It appears to me extremely desirable that as much information as possible in connection with commons should be found upon the registers created under this Bill.
§ When I was corresponding with the noble Lord, he wrote to me that, with regard to title of land registered at the Land Registry, common rights may be, but need not be, registered under the Bill. There is no prohibition of double registration of rights in the Bill. It is intended to encourage it so as to get as many rights as possible on the new register. It appears to me that if one were to require that rights of common 725 should be registered under this Bill if they are not to lapse when the registers cease to be provisional, one would be giving effect to the Government's indication as made known to me; and in the view of the Commons Preservation Society it is extremely desirable that all common rights should be registered on these registers. I beg to move.
Page 1, line 23, leave out ("or under the Registration Acts, 1925 and 1936")—(Lord Molson.)
§ LORD HURCOMB
May I support my noble friend's Amendment, on the same grounds as apply to many others of his Amendments which I also support. This Bill is of great interest, not only to the amenity societies but to all the conservation societies, and to those who use the commons and look towards using the commons for recreation. It seems to me most important that its provisions should be intelligible, and that it should not be necessary to have to dive about among many registers to find out what common rights are.
In this Bill especially (and I think it applies also to a great many other Bills directed to the conservation of nature or the preservation of amenities) the provisions should be intelligible, and the machinery should be not too difficult to administer or to enforce. For those reasons, it seems to me that this Amendment has a great deal to be said for it.
May I say that the societies to which I have referred are grateful to Her Majesty's Government for having brought this Bill forward at this time. I believe it is true that the hen laid the egg while she was still in the custody of a previous Administration. But the credit must go to those who put the egg into the incubator and hatched it out, otherwise some years might have elapsed before even this preliminary step was taken. Therefore, we are grateful for the Bill. Nevertheless, we should like to see it as comprehensive as possible, intelligible to the genera] public, in spite of the complexities of the subject, and readily administrate and enforceable. I am very grateful also to the noble Lord in charge of the Bill for what he said about his attitude to all these Amendments. He said that he will not reject them, or merely use some formula that he will consider them, without really giving them 726 his earnest consideration, and seeing whether, perhaps at some later stage of the Bill, he cannot himself meet the points of view which they express.
§ LORD MITCHISON
I am grateful to the noble Lords who have brought this point forward. It raises a rather difficult question about the Land Registry. The point is that people who register a title to land, and may, as in this case, register some other matter relating to the land, too, are seeking a definite title—something which is, if I may use a rather clumsy phrase, guaranteed by the State. That is the broad object of the Land Registry. The trouble about this Amendment is that its effect would be that rights of common which have been registered at the Land Registry would lapse at the end of the commons registration period, if they are not also registered in the commons register.
I said earlier in answering the noble Lord whose Amendment this is, that we wanted all common rights to be put into the commons registry too; and that is indeed our wish. But that is not a reason for threatening people who have registered with the Land Registry with a deprivation of title under the Land Registration Acts if they fail also to register under this Bill. For that reason I cannot accept the Amendment. But, if I can give the noble Lord some consolation, I understand that there are very few common rights registered at the Land Registry. That should not prevent fairness from being shown to people who have so registered such rights, but one consequence would be that if one wanted to find out about them an extensive search would have to be made, with very little practical result. For these reasons I think that the right course is to preserve the Land Registry entry, with all its consequences in respect of common rights, and not to invite a whittling away of them by legislation in this Bill, which as I have said, has a quite different purpose. I cannot see what real injustice is being done here in the terms of the Bill, and I cannot see that this Amendment (I say this with all respect to noble Lords who have spoken in favour of it) would be very helpful to anybody. I must repeat that I cannot think it would be fair to those who have registered common rights, a 727 few people perhaps, who have registered their rights at the Land Registry, and for that reason I am afraid that I am unable to accept the Amendment; but I repeat my usual offer.
§ 4.52 p.m.
§ LORD MOLSON
There is one important point I want to make in reply to the Parliamentary Secretary, and then I should like, if your Lordships will bear with me for a moment, to raise a general question which will come up on one or two of the later Amendments and to which the Parliamentary Secretary and the Government might be willing to give a little further thought. The main point is that the Land Register under the Act of 1925 is not available for the general public to see. Only in very restricted cases can an individual go and see what the rights are, and it is, of course, one of the main purposes of the register set up under this Bill that the public should know what their rights are. Therefore it does not in any way meet our point (indeed, I thought it was the Government's own point) that we wanted to have all these rights registered in a way accessible to the public, to say that a number of them should have been registered under the Land Registration Act, 1925; because such registrations are not open to inspection by the public.
May I, in a few sentences, put to the Government the difficulty which we feel because of the existence of the Land Registry as a register of titles to land at the same time as this new register of rights in and connected with commons is being created. The Government have put the point to me that it is extremely undesirable to have two systems of registration at the present time. They say that the registers might differ, which would create complications, or they might say the same thing. But, as I have pointed out, if what is entered in these new registers is the same as is entered in the Land Register it then becomes available to the public. But I would ask the Government to consider whether it would not be possible to introduce some machinery by which what is contained in the Land Register can be put into the registers set up under this Bill. I repeat again that only then will they be available to the public.
728 But it is also extremely important—and we thought it was one of the purposes of this Bill—that all the rights in connection with commons should be registered in the same place.
§ LORD MITCHISON
I am very glad that the noble Lord has raised the more general point. I stated my objection to this particular Amendment, and I think it is the more general matter that he has in mind. What we want to avoid is not necessarily two systems of registration but two systems of registration each of which has some element of the conclusive in it. When one comes to look at the provisions of this Bill there is nothing conclusive whatever about the registration of ownership; it does not give anybody a title. It is really information that has to be included in the register. Indeed, in one instance there is provision for action by the local authorities if the ownership is not registered. But it does not give anyone a separate title.
The difficulty—I was going to say the impossibility—of having two land registration systems side by side covering the same thing is, I think, quite obvious. The Land Registry, after all, was set up to determine questions of title, conclusive title, possessory title, whatever it was—I think those are the three categories used. There entries are made after very careful formal proof, as the noble Lord will know: they are conclusive, and they are also confidential. The Land Registry will reply at once if asked whether a given piece of land is on their register or whether it is not. They will not, as the noble Lord rightly indicated, give any more information about it. What we want is to get the fullest possible information as to what we are concerned with here, which is not the Land Register at all but the commons registers, the registers which are to be kept by the registration authorities under this Bill.
On this matter I can give the noble Lord quite a good deal of encouragement. We do propose to see the Land Registry again at a later stage (of course they have been seen already) to see whether arrangements can be made for getting any information on their register put on to the commons registers. I cannot give any definite undertaking, since this does not seem to me a question which arises at this stage. It will arise at the end of the 729 period when the registers are completed and one is contemplating taking action and preparing what somebody called second-stage legislation; indeed, what we should do about the commons when we know who owns them and the rest of it. That is the moment when one will have to consider what, if any, use for public purposes, and in public, should be made of entries which are at present in the Land Register on the basis of being confidential and proving a proper title of one kind or another, after full investigation. I wonder whether the noble Lord will take it from me that we have had in mind to discuss this matter further with the Land Registry, not with the object of making any amendment of this Bill but with the object, when the facts are better known, of seeing if there is any information in their possession which ought to go on to the commons registers.
I hope that nothing I have said will encourage anybody who has commons rights on the Land Register not also to register them on the commons register. They cannot count on our taking anything from the Land Register and putting it on the commons register. That point we are going to consider. In their own interests they would be wise not to try to be too clever about what goes on to the commons register, but if in doubt to register, and, as I think I said on Second Reading, with no particular intention of benefiting the legal profession, certainly to consult a solicitor.
§ LORD CHORLEY
Before we leave this clause, I noticed that my noble and learned friend who is in charge of this Bill, in the course of his argument pointed out that these rights registered under the present Registration Acts, if they did not get on to the commons register, would have lapsed at the end of three years. This seems to me to be a good reason why the Minister should have some discretion for extending the period in proper cases.
§ LORD MOLSON
In view of the Parliamentary Secretary's sympathetic reply to the substance of my argument, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.1 p.m.
§ On Question, Whether Clause 1 shall stand part of the Bill?730
§ LORD MOLSON
I apologise, but again I think that it is important that at this early stage we should understand exactly how Clause 1 is intended to operate. I have a feeling that the machinery as set up under this Bill will not be entirely satisfactory without amendment. But there is one thing of which I feel absolutely certain—namely, that there will have to be a clear explanation, both to the Legislature and also to the public, as to the meaning of the words in this Bill.
I can never remember reading a Bill where the wording seemed to be more divergent from the explanation which has been vouchsafed by the Government. This clause provides thatThere shall be registered …
I thought that registration of the ownership of the land meant registering the title to that land—who was in fact the owner of the land. That, however, is not the case. I read, from the explanation that has been vouchsafed to me:
- (a) land in England or Wales which is common land or a town or village green;
- (b) rights of common over such land; and
- (c) the ownership of such land."It cannot be too strongly, or too often, emphasised that the Bill does not set up a system of registration of title to common land.To underline the difference, the Bill uses the expression "registration of ownership". How is it possible for the ownership of common land to be registered without the register stating who is entitled to it? That is precisly and exactly what, because of some later Amendments of mine, I have been warned that I must understand.
There are apparently three things which we must try to keep clear. The first is status; the second is ownership, and the third is title. I do not know how one can register the ownership of land without at the same time having a pronouncement upon title. In this matter the other word "status" is also most important, because in his winding up speech the Parliamentary Secretary dealing with one of my points saidI agree with the noble Lord that the claim under Clause 4 (1), except for status, must be by someone interested."—[Official Report, Vol. 263 (No. 36), col. 115, February 9, 1965.]I understand that status is different from ownership; it is different from title, and it may well be different from commonable rights. I think that we ought to have a 731 quite clear exposition of this at this stage from the Parliamentary Secretary, because I feel that it would enable us to save a lot of time.
§ LORD MITCHISON
I entirely agree; I think it will. I think this difficulty is rather a verbal one, but I will try to make matters as clear as I possibly can. You put ownership on the register for other purposes than for establishing or recording title. To take an obvious instance, I think I am right in saying that rating registers—valuation rolls, as they are called in Scotland—show both the owner and the occupant. Nobody has ever suggested that that had any effect whatsoever on the question of title. It is similarly intended here that ownership should be registered for the purpose of identifying the man who is the owner, but not for the purpose of establishing or impugning his title. I suppose I must be legally minded, but it does not seem to me that there is any obscurity at all about this. You can put down for a number of purposes—in this case it is for determining questions of commons—someone who claims to be (that is no more than it is in this case) the owner of property; and if you are going to deal with the property—
§ LORD MITCHISON
The owner of real property, the owner of land. You can do that, but that does not have any effect on his title unless you say so; and you do not say so. You do not say so in this Bill. If the noble Lord will look at the two following subsections, I think he will see the way the procedure works. Under subsection (2) (a), what is going to lapse is the question of status. That is how the word is used. I do not altogether love it—in that matter I agree with the noble Lord—but it is rather convenient in relation to the question of whether land is common land or a town or village green. Mr. X may be the owner of certain meadows, but the question of whether these meadows are common land is a separate question. They may or may not be common land. The point is that if no claim is made that they are common land, their status or supposed status as common land will lapse at the end of the registration period.
732 If I may refer on for a moment, the noble Lord will see that under Clause 4 (2) theregistration authority may register any land as common land … notwithstanding that no application for that registration has been made…".That is a provision about status; and subsection (2) (a) is also a provision about status. Once the land is common land, then there have been or are persons entitled to rights of common over it. I say carefully "there have been or are" because there are cases where common land may be shown to exist but no one may be able to find the commoner; and therefore the rights of common will also lapse unless that land is registered within a certain time. But not a word about rights of ownership lapsing.
And if you go to subsection (3), you find the provisions for the case where no one has registered as the owner. The first one is the town or village green, which is tobe vested in accordance with the following provisionsthey are provisions for vesting in the local authority, and there are other provisions about it, too. Then paragraph (b) is left openif it is common land, be vested as Parliament may hereafter determine".Again, I mention this on Second Reading, and I think that it is right to leave open the question of ownership if it is unregistered and undetermined.
§ 5.10 p.m.
§ LORD MOLSON
I am sorry, but the noble Lord is falling into his own trap. He just said that it is leaving the ownership undetermined. If the noble Lord will look at the beginning of the clause he will see that it says that what is to be registered is "land in England or Wales which is common land"; secondly, under paragraph (b) there is registered the commoners' rights; and under paragraph (c), comes the registration of the ownership of such land. Of course, it is possible that there may be no known owner under paragraph (c), but the land will be registered under paragraph (a) and the commoners' rights will be registered under paragraph (b). What the noble Lord meant was that it would not register a title. He did not 733 mean that it would not register ownership, because it would register either the owner of the land or the fact that there was no known owner of the common land.
§ LORD MITCHISON
With great respect, this really is rather verbal. I was trying to make clear that the registration of ownership under this Bill has no effect one way or the other on the question of title—the question of ownership of the land in that sense. The only place where an entry has any effect upon title is in the Land Registry. It is perfectly true that, for the purpose of this Bill, ownership is registered in the sense of being put on the register. But when one looks at the consequences, the two things which lapse are the status, the question whether it be common land or not, and the particular rights of common. They are what lapse if they are not registered. There is no provision for the ownership lapsing if it is not registered. Indeed, it would be very unfair to the Land Registry if there were any such provision.
It is for that reason that we have been able to shorten the period recommended by the Commission. The Commission had intended entries of ownership in the register to have an effect which we do not think they ought to have. In order to get that effect one would need to have a much longer period for registering than is actually the case. If it is a question of registering title, possessory title, for instance, it takes the full period to work that out. One could not do it in three years. Therefore, with great respect to the noble Lord I would point out that other provision is made for cases where no ownership has been registered. The provision is twofold. First, as regards town or village greens, they are dealt with in the Bill. Secondly, as regards commons, they are deliberately and of intention left open on the question of ownership until we come to the second stage legislation. I am sure that that is right, and that noble Lords will agree with me. One cannot determine questions of ownership in this Bill. The whole object of this measure is to find out what are the rights of commons, what is common land, who are entitled to all these rights—commons matters, as it were.
Would it not make the matter clearer, at any rate in one's own mind, if after paragraph (c), "the ownership of such land", one put in brackets "E.&O.E."?
§ LORD MITCHISON
I do not know that we ought to introduce the language of invoices into an Act of Parliament.
§ LORD MITCHISON
In sympathy with the noble Lord, Lord Hawke, may I say that I think this necessarily is a difficult Bill to follow. Its relation to other types of legislation made for other purposes is rather complicated. If it is the least consolation to the noble Lord, I would say that it took me a very long time indeed to find out what I thought was the right answer to some of these points. I sympathise absolutely with him. When one asks, "Cannot you explain yourself in clearer language?", all I can say is I have done my best. At the end of the day I do not think I can explain it more clearly, because it is too complicated a subject. That is the real difficulty about it.
§ LORD HURCOMB
While I accept what the noble Lord says about the extreme complexity of this matter, I would ask whether he would give some further consideration to the position of all the members of the public who are interested in commons from so many points of view. If they live in Hampshire or in Surrey, or wherever it may be, they want to be able to know what the common lands are. They are also interested in what is going to happen to them if no owner is registered. The Bill says that if the Commons Commissioner is not satisfied that the land is a town or village green, he can direct the registration authority to register as its owner the local authority. But does that mean that the local authority is going to be registered as the owner of land to which there is no valid title? It is that kind of thing which is puzzling many people, though I do not expect the noble Lord to go into further arguments about it now. However, I am 735 sure that some considered, clarifying statement at a fairly early stage would set many minds at rest. People's minds are not competent to revolve around all these legal wheels, and they would like to know where the matter stands.
§ LORD MITCHISON
May I assure the noble Lord that we have had this very much in mind? I do not expect even people concerned in this matter to read the speech which I made on Second Reading, when I clearly said that we were going to have a full explanatory leaflet, and that we were going to do all we could to see that it got about and was made widely available; and that we should prescribe, as we have power to prescribe, to the local authorities steps for this kind of thing. We fully appreciate the need for an explanation related to the ordinary man and to the kind of case which he will have to consider for himself. I assure the noble Lord that that has been far from forgotten. Indeed I said something about it on Second Reading.
§ LORD CHORLEY
While I was listening to my noble friend, it seemed to me that when he spoke about registration of the ownership of the land he was talking about registration of claims to the ownership. The noble Lord, Lord Molson, and the noble Lord, Lord Hurcomb, both referred to cases where there is not a claimant to the ownership at all. The draftsman of the Bill obviously had that much in mind, because later on he makes some attempt to deal with it. It is also a possibility, which so far has not been mentioned, that several people may be claiming the ownership in regard to this matter. Clearly, in that case the ownership of the land cannot be registered, but the claims to the ownership can be so registered. It seems to me that it would make this subject much simpler, both as a matter of law and as a matter of understanding it from the common sense point of view, if we said "claims to ownership" instead of "ownership".
§ LORD MITCHISON
I am sorry to take up time, but I think that I can answer that point quite shortly. I agree with my noble friend that what one is really registering is a claim to ownership. It is no more than that, because if you said you were registering ownership you might give rise, unless your language was rather care- 736 fully worded and in the right context, to the idea that there was some question of title. There is no question of title involved at all in this Bill, as regards the ownership of land. There are questions of title (of right, as it were) involved both in relation to its status and in relation to the rights of common. Lastly, as to conflicting claims to ownership, the reason I did not mention the subject was that one, numerically, comes first, and matters such as that are dealt with in later clauses.
§ LORD McNAIR
I do not wish to prolong the discussion on Clause 1, but there is one point that gives me some trouble, and possibly the noble and learned Lord could clear it up. Let us suppose that under Clause l (1) (c) I register a claim to the ownership of land. Clause 9 says that:The registration … of any rights over any such land shall be conclusive evidence… as at the date of registration.I should like to feel clear that that is not intended to give, and does not give, the same sort of conclusive title which one would get under the Act of 1925.
§ LORD MITCHISON
I am sorry to take up so much time, but there is a short answer to that question. If the noble Lord will look at Clause 9 he will see that the registration is to be conclusive evidence of what is registered, and what is registered is "any land as common land or as a town or village green"—that is, the question of status—"or of any rights over any such land"—that is rights of common. So that under Clause 9 the entries are conclusive as to the two matters about which I said they would be conclusive—after the end, of course, of the period of registration and after dealing with objections—but they are not conclusive as to ownership. That is the short answer.
§ LORD MOLSON
In that case, one would suppose that it might be better—perhaps we could consider this when we come to Clause 9, but I give the Government notice—to say in Clause 9 that registration should be conclusive as regards paragraphs (a) and (b) of Clause 1 (1) but not of the whole clause, because paragraph (c) uses the words, "the ownership of such land". It seems to me that the noble and learned Lord is entirely right in what he has said.
§ LORD MITCHISON
With great respect, Clause 9 is perfectly clear. It does not deal with ownership; it deals with status, and it deals with rights. If I may make two somewhat personal points, in this place I am not "learned"; and, secondly, whether I was learned or not, I should never try to interfere with the Parliamentary draftsmen on a question which is really one of language.
§ Clause 1 agreed to.
§ Clause 2:
§ Registration authorities
§ 2.—(1) The registration authority for the purposes of this Act shall be—
- (a) in relation to any land situated in any county or county borough, the council of that county or county borough; and
- (b) in relation to any land situated in Greater London, the Greater London Council;
§ 5.23 p.m.
§ Earl BEAUCHAMP
moved, in subsection (1) (a), after "land" to insert "(not being land situated in the Malvern Hills)". The noble Earl said: I should like to add my tribute to that of my noble friend Lord Molson to the very patient and kind way in which the noble Lord, Lord Mitchison, is conducting this Committee. I would ask the Leader of the House very respectfully to treat my Amendment as what is known as a paving Amendment, because that will be for the general convenience of the Committee, and I shall then be able to refer to the next Amendment in my name, No. 11, and to the consequential last one, No. 32. I am very grateful if silence indicates consent for that permission. I would say, first of all, that I do not think the Amendments which I am moving would turn this Bill into a Hybrid Bill, which is something we all dislike, because I do not believe that at any stage anybody will ever want to attack it, whether by way of petition or in any other way. Fourteen out of the twenty-six members of the Malvern Hills Conservators are those representing local authorities, and at all times they can put their views forward.
The land concerned lies mostly in Worcestershire and Herefordshire, but lest I should be thought remiss I should add that there is a very small part of 738 the land in Gloucestershire; but it is so small that Gloucestershire have never even asked to have a representative on this body. The Conservators control 2,600 acres altogether. They have already got one jump ahead of Her Majesty's Government, because they have made a register of their commoners and licensees. They have existed since 1884, since when various Malvern Hills Acts have been passed—the last one in 1930 when we had a Labour Government. I think the truth is that this body, the Malvern Hills Conservators, resembles a local authority very closely indeed.
If this Bill goes through I can see some trouble for Her Majesty's Government in this particular case, because instead of consulting one homogeneous authority, they will have to consult three; and that surely will lead to a great waste of time and to great trouble. I also believe that, as things stand, county councils already have a great deal to do and do not desire this extra duty; and I do not think we want to put it upon them. I have heard it suggested that if this Amendment is accepted Her Majesty's Government will then be deluged by a flood of similar applications, but I do not think this is the case. If your Lord-ships will look through the Marshalled List of Amendments, you will not see one Amendment of any kind resembling my three Amendments. I could say a great deal more about the Malvern Hills Conservators, but I do not think that is called for on this occasion. I beg to move.
Page 2, line 10, after ("land") insert ("(not being land situated in the Malvern Hills)").—(Ear! Beauchamp.)
§ LORD MITCHISON
This is a matter about which there has been quite extensive correspondence with the body in question the Malvern Hills Conservators, or someone acting on their behalf. I should like to begin at once by saying how much one appreciates the excellent work that has been done by the Conservators, not merely on the question of registration but in other directions, too. I have read their evidence before the Royal Commission, as I have also read the evidence of the Malvern Urban District Council, who, on the whole, supported them. I might perhaps be allowed to add that I had the greatest admiration 739 and respect for the Clerk of that body when he was alive and appeared on that occasion. None the less, I am afraid that we cannot accept this Amendment; and let me tell the noble Earl, with all respect and sympathy, why.
It is quite true that the county councils are very busy. It is for that reason that they have an adequate staff as a rule. If we start letting in smaller bodies, either local authorities (though I do not want to prejudge what we may have to say about that later) or particular bodies, which say, not without justice, that in many respects they resemble local authorities, we shall then be adding considerably to the number of registration authorities. Moreover, we shall be putting on the Malvern Hills Conservators a duty which is rather beyond anything they have had to do in the past. I do not want to push this point too far, but, if one looks at their evidence, and the questions they were asked before the Royal Commission, it is clear that, although they have done a great many good and sensible things, their title to do them was not always too clear. They have their private legislation—there is no reason to go into it now—but we should be putting a very serious burden on them.
The Government have considered this kind of question—the question of a common extending into three counties. In this particular case I think I am right in saying that much the largest portion is in Worcestershire, although I notice the representation on the board of conservators is equal as between Worcestershire and Herefordshire. There is a provision in Clause 2 (2)Where part of any land is in the area of one registration authority and part in that of another the authorities may by agreement provide for one of them to be the registration authority in relation to the whole of the land.I said on the Second Reading of this Bill that I thought its whole working and success depended upon the willing cooperation of the local authorities concerned, particularly the county councils. I should have thought that in this matter they would, without much difficulty, be able to form a joint authority. But I would not wish to discourage the noble Lord.
The conservators are in fact not only an authority for sundry statutory purposes but they are also considerable 740 owners. They bought up pieces of land and common rights, and so on, and though no doubt in a statutory body of this kind it is not a conclusive objection, I think it is some objection that they are already largely personally interested in cases as a body where they would also have to be the proper authority for registration. I think it is better to have a registration authority that normally has not much financial proprietory interest in the land which it is registering. For this reason I think the county councils are better.
We have not yet reached the stage of schemes and the like for managing these commons, and I cannot give any assurance. I am sure the noble Lord will understand that we have to find out people's rights, and this is a case, in all conscience, where the rights are, at any rate to the outsider, frightfully tangled as between one person and another. Therefore, I cannot give any assurance about it, but it seems to me quite impossible to promote any scheme about the Malvern Hills without at least consulting very carefully the Malvern Hills Conservators and, no doubt, the district council concerned.
I hope the noble Earl will feel that we are trying to meet him so far as we can, but this is not yet the moment for asserting the rights of the conservators; and that as a registration authority they would be quite exceptional, as he himself indicated, and they would not be the best body for the purpose. I hope that in the circumstances the noble Lord may feel he can withdraw his Amendment, but I repeat my usual undertaking, except that in this case, as he knows, it has already been very carefully considered. However, a little more consideration will not do any harm, if he so wishes.
§ Amendment, by leave, withdrawn.
LORD GRIMSTON of WESTBURY moved, in subsection (1) (a), to leave out "county or". The noble Lord said: Perhaps I might suggest it would be for your Lordships' convenience if we took the other Amendments standing in my name, namely, Nos. 7, 8 and 10, at the same time as they all hang together. For the sake of clarity, when they are all
put together it would make paragraph (a) of Clause 2 (1) read as follows:
The registration authority in relation to any land situated in any county borough or county district, the council of that county borough or county district…".
§ As your Lordships will see the object of the Amendment is to make the county district council and not the county council the registration authority. I think here perhaps I should declare, if not a direct interest, at least the vestige of one inasmuch as I am the President of one of the local authority associations, the Urban District Councils Association. The reasons why we wish to do this are several, and first of all I will take one which is perhaps not a minor one but of less importance—namely, the convenience of the local commoner and the local landowner, and I think (their convenience should be considered.
§ It cannot be denied that for those people it is very much easier to deal with a local council office and not a county hall, which in many cases is quite a considerable distance away. I do not advance that as one of the most important points, but I think it merits consideration. Your Lordships will realise that claims will have to be made by people living in, or interested in, the district. For that reason local advertisements will have to be inserted in newspapers. There will have to be publicity of various kinds, and, as your Lordships will know, in the average county the local Press does not cover the whole county but covers a certain area, very often corresponding to the county district. There will be other forms of publicity required, but also I think there will have to be much fact finding on the spot. There could be no better focal point for all these activities than the local council office, which the local people know about; they know their way there, and it is the place to which in any case they will naturally go.
§ There is another point in this connection. I think in any case county councils, if they were the registration authorities, would certainly have to ask county districts to do their spadework and a lot of the fact finding for them, and I think past experience shows this is in fact what happens. This also is a reason for making the district council the registration authority. It may be argued that the county district staffs are not so technically qualified as the county council staffs. 742 That may be true; but, after all, the work of registration—and the noble Lord the Parliamentary Secretary has stressed in discussing previous Amendments that we are only concerned with registration—does not involve deep knowldge of planning or adjudication or land utilisation, or anything of that kind. After all, registration was done by county district councils long before county councils became planning authorities. I do not wish to detain your Lordships, but those are briefly the reasons why we believe that the proper authority for the registration should be the county district council.
§ There is a broader theme on which I should like to conclude, not so much a matter of convenience, ease of collecting information, and so on, but that the administration of local government should be brought as near to the needs of those immediately effected as is possible. I think this Bill makes it, in respect of registration, more remote than it need be. I would therefore advance that general consideration in favour of the Amendment. In conclusion, I very much appreciate the sentiments expressed by the noble Lord the Parliamentary Secretary, that he will be prepared to think again, and I take it from him when he says that, he means it. I therefore very much hope, after what I have said and after what may be said by other noble Lords, that he will have another real look at this matter. I beg to move.
Page 2, line 10, leave out ("county or").—(Lord Grimston of Westbury.)
§ 5.40 p.m.
§ LORD ILFORD
The two Amendments which stand in my name a little later in the Paper, numbered 6 and 9, deal with substantially the same matters as the Amendment that has just been moved by my noble friend. Both Amendments seek to make the county districts, instead of the county councils, the registration authorities under this Bill. My noble friend's Amendment is a little wider than mine. It would make the boroughs, the urban district councils and rural district councils the registration authorities; but my Amendment is restricted to the boroughs only. I suppose that I should follow the example that my noble friend has set and declare such interests as I have in this matter as the President of the organisation which caters for the municipal boroughs: 743 and it is for that reason that I did not feel that I ought to include other authorities in the Amendments which I ventured to put down. But the issues which these Amendments raise are, in essence, the same, and I desire to adopt everything my noble friend has said in support of his Amendment. In the interests of the Committee's time, I propose to state the arguments that I desire to address to the Committee now, and later, when my Amendments are reached, I propose, with the Committee's consent, to move the first Amendment formally.
Members of the Committee will be aware that for some years past it has been the tendency of legislation to withdraw powers from the smaller authorities and to concentrate responsibility in the hands of the county councils. Indeed, with the growth in the complexity and cost of modern municipal services that process has been almost inevitable. The resources of the smaller authorities have not been adequate to enable them to undertake responsibility for many major services. But the smaller authorities still are, and I think will always remain, an important and, indeed, essential element in our municipal democracy with which we cannot afford to dispense. When an opportunity arises, as I submit to the Committee it arises in this Bill, to entrust to the smaller authorities something which is within their competence, then members of the Committee would, I apprehend, be inclined to welcome that opportunity and, I hope, to act upon it.
In this Bill the county councils have been made the registration authority for no better reason, so far as I can see, than to keep in step with the contemporary fashion of legislation. I can see no reason why the county councils should have been given this responsibility, except that that has been the tendency of legislation in recent years. Registration of land charges is something that is well within the competence of the smaller authorities—the non-county boroughs, and the urbans and the rurals. They can, and they do, undertake registration more cheaply and more conveniently than the county councils are able to do. In fact, I am told that the district councils now register more local land charges than the county councils themselves.
I have tried to enumerate the different classes of land charges which the district 744 councils at present register. They register charges for making up streets, which in some towns are very numerous and very important; they register charges under the Public Health Acts where houses are in need of repair, or where repairs have been carried out at the public expense; they register street improvements—the by-laws fixing building lines, and so forth; they register charges under the building by-laws. Then, in those counties where town planning powers have been delegated to the county district councils—and the administration of the planning regulations has been very largely delegated to the district councils—the district councils register town planning consents and various other matters arising under the town planning restrictions; and they also register, where there is delegation, what are called the "Trees Orders", which secure the preservation of trees. So registration is by no means a new responsibility for the district councils. They are very familiar indeed with the functions of registration.
I am told that the non-county boroughs will need no additional staff to carry out this function of registration under this Bill if the Committee should decide to assign it to them. In the majority of councils the present staff is adequate to carry out this additional registration work without further recruitment. The county councils, on the other hand, will certainly need additional staff. The work falling on county councils to-day is immense, and their staffs are fully occupied with what they have to do at present. They will certainly have to engage additional staff in order to undertake this duty.
Perhaps the most important argument in favour of this proposed change is that registration by the district council will be much more convenient for the general public than registration by the county authority. A person who desires to inspect the register will, if it is kept at the county town, have to make a journey of perhaps twenty or thirty miles in order to examine the register. It is surely sensible that these local authorities should be made the registration authorities for common land, including the town and the village greens. The members and officers of these authorities are local people who are acquainted with their neighbourhood and know a good 745 deal about their town and village greens Indeed, in many cases they are the authority responsible for maintaining the town and village greens or the commons within their districts. It is surely absurd that these town greens, surrounded as they are in most cases by the town itself, and usually managed by the town council, should be registered at a county town twenty or thirty miles away.
I do not know what the noble Lord is going to say about these Amendments. I hope he will extend to them the welcome, if it is a welcome, which he has extended generally to the Amendments to this Bill. If the noble Lord takes that course, then I shall be very ready, with the Committee's leave, to withdraw my Amendments and consider them again before the Report stage. But, if I may risk repeating myself, this Bill provides the Committee with the opportunity to do something which noble Lords have very often been anxious to do: that is, to build up in some measure the smaller local authorities throughout the country. Here we have something they can do very conveniently and I hope that the Committee will eventually come to the conclusion that they ought to be allowed to do it.
§ LORD AUCKLAND
I rise to support very warmly the Amendments in the name of my noble friend Lord Ilford. I have No 1nterests to declare in this matter, since I am not concerned with local government; but for nearly eleven years I have lived in the constituency of Epsom, and some months ago I caused some consternation in your Lordships' house over another matter regarding it. But I do not think that what I am about to say will have quite the same effect. Nevertheless, Epsom, as a non-county borough, will suffer, as I understand it, under this Bill. The anomaly here seems first to be on the ground of population. Epsom, with a population of 71,700, and Carlisle, a county borough with a population of 71,219, will be treated differently under this Bill. But in 1936, under the Epsom and Walton Downs Regulation Act, a great deal of land was obtained for the purposes of the local people. Now, 1,200 acres of common land have been preserved and are administered very efficiently by the Conservators.
746 The Royal Commission categorically state that the county councils already have far too much on their plate. This is particularly true of the Surrey County Council at the present time, following the London Government Act; and I am certainly not convinced that the staffs of the Surrey County Council would be any more efficient than the staffs of our local Epsom and District Council in administrating this matter, which they have done for a long time past. It seems to me that this Amendment strikes very much at the roots of local government. Epsom Downs have been frequented by many people engaged in various pastimes for many years past, and the administration, as I have said earlier, has always been very efficient. If this Bill goes through, as my noble friend Lord Ilford has said, people who wish to glean information will have to go to their county hall—and Kingston is not the easiest place to get to from Epsom—whereas at the moment they can go to their town hall and get the information quite easily.
The Town Clerk of Winchester, who is also Secretary of the Non-County Boroughs Association, said quite clearly at a recent conference that a county council of any size in modern times is so overburdened with work that all details and most policy is dealt with by committees. The Town Clerk of Winchester is a man who has had a great deal of experience in local government, and I hope that the Government will take due notice of this matter, give it the closest consideration and accept the Amendments of my noble friend, which are solely and purely in the interests of really good local government.
§ LORD MITCHISON
I said at the beginning that I would gladly, if anyone asked me, undertake to look again at any question that was raised. Of course I will stand by that. But I made it clear that I would give no undertaking whatever; and I think it is only fair to noble Lords who have put their case to say that, although I will look at it again, I see little prospect in this particular case of what would be a rather radical change in the Bill. The choice of county councils and county borough councils as the registration authorities comes, of course, from the Royal Commission's Report, and, I venture to think, it is right and inevitable.
747 The district councils have other functions under the Bill, the Committee will notice, and in particular they have functions under Clause 8 (5) in respect of unclaimed land, which vests not in the county council but in the county district council—and I am using that phrase to include the non-county boroughs. It is true, as has been said, that the centre of the district council is likely to be nearer for most people than the centre of the county council. I can assure the Committee that in my Party, at any rate, we are very appreciative of this kind of point, for we find great difficulty in getting people to serve on county councils because of the distances they may have to go from their place of work or abode. That is true.
It is also perfectly true to say that district councils have various functions and some of them include keeping registers; but this task is too much, in my opinion, to put on a district council. They vary in size and some are very small indeed. I will give one or two figures which I extracted from that common source of information, the current Municipal Year Book. The task of keeping these registers and carrying out the other functions of the registration authorities under the Bill is not just formal, not just a case of keeping a book and seeing that entries are made in it. It is a very responsible business. If your Lordships would look through the Bill you would find, time and time again, cases where the registration authorities have to do this and have to do that. Therefore it is, as it always is in local government, a question of balancing the proximity and human factors in the country district councils against the greater resources of the county councils.
I hope that I am putting this in a way which is clear and understood. This balance between the two ranges of authorities is no new matter. My present feeling is strongly that we must come down on the side of the county councils. Since, no doubt, the matter will be raised again on Report, I hope your Lordships will co-operate with my good intention to the extent both of withdrawing Amendments for the moment and of putting them down again on Report and saying anything more that 748 occurs to them either to me in the interval or to the House on Report.
I think that I ought to mention the figures I have been extracting—I say this with great deference to the noble Lord, Lord Grimston of Westbury, under whose chairmanship I have sat at sundry excellent informal dinners, over which he presided as President of the Urban District Councils' Association. He also sat as chairman in another place. Still, facts are facts. In England, there are 49 county councils and 81 county boroughs—although it will be naturally the case that the county councils will be far more concerned over this matter than the county boroughs. In Wales, there are 13 county councils and 4 county boroughs, and the total tots up to 143 registration authorities—quite a sizeable number. If we look at them, we find that Rutland, which by some miracle or misfortune has survived, is the smallest county and its population is 26,430. In Wales, Radnorshire has a population of 18,000-odd. In England, as sundry of my noble friends behind me have been reminding me, easily the smallest county borough is Canterbury, with 31,000, and the smallest in Wales, Merthyr Tydfil, has 58,000, in round figures.
Now let us turn to the other possibility. We are asked to bring in the non-county boroughs, urban district councils and rural district councils. I do not want to bother your Lordships with detailed figures, unless you want them, but I added up the total and I find (although I am always a little doubtful about my own arithmetic) that there are 1,352 authorities. I rather blench at having 1,352 registers. Of course, there is going to be a county review, and I agree that some of them may disappear—but Rutland is still there. When we look at the smallest of these authorities, Bishops Castle, with a population of 1,230, is going to keep a commons register whether it has common land or not and there is Montgomery, the smallest in Wales, with 970. The smallest of the urban district councils in England is Saxmundham with 1,500; and the odd thing is that the smallest R.D.C. in Wales has exactly the same population—a nice round number, if they counted them right. There is a placed called Llanwrtyd—I cannot pronounce the name properly—
§ LORD MITCHISON
I am most grateful for the noble Lord's assistance. He left out "Wells", but that is an English interpolation. There are 500 people living there. It is really too much to ask local authorities of that size to do the difficult and responsible job that is called for under this Bill. I quite understand the feeling about it. I am well aware that quite a number of them could. For instance, there is Epsom, which is huge in comparison with a number of these places and used to be a very large urban district, though I do not know what has happened to it. Eton R.D.C. is a surprisingly large authority.
But if we take these authorities on the average, they are small. We are going to have difficulty enough in rousing real enthusiasm in the counties, one or two of which have no or few commons; but when it comes to stirring up hundreds of district councils, I am sure that those who have no commons would be profoundly bored with the whole business. I do not think that it is within the capacity of the Government or of the Ministry to do this. If we were told by Parliament to do it, of course, we should try; but I think that if this change were made the prospects of success of the Bill would be seriously hindered, simply because of the number of authorities concerned.
The sort of difficulty we had just now about the Malvern Hills being within three counties would increase to staggering numbers. Some of these commons are going to be in the area of more than one R.D.C. I sat in another place for a constituency which contained five U.D.C.s and a couple of R.D.C.s, and it still did not take in anything like the whole of one of the smallest counties in England. Some council areas are very small indeed, and we cannot rely on the County Review, which has broader objectives in mind than those in this Bill. On the present position, their sheer number represents an absolutely conclusive answer.
When it comes to a small council, I must take leave to differ a little from the noble Lord, Lord Ilford. No doubt some of them have enough staff and can manage, but a great many of them will not have. I know a number of such councils who would be quite unable to do 750 this job without taking on a special staff and if they require a special staff—and we have to deal altogether with 1,352 authorities—it is going to put them to quite considerable expense.
The long and short of it is that this Bill depends on the co-operation and good will of local authorities, and we shall not get it if we push the keeping of these registers on to the smallest local authorities. The only hope of achieving this is to have a manageable number of local authorites, who already have the sort of resources that are sufficient for this purpose. I agree that if we could do it in the way suggested, that in itself would be an advantage, but I do not think that it is practicable. If we allowed these Amendments, the difficulty would be that the Bill would not work. That is my present feeling about it. Having expressed myself in these forcible terms, I repeat that if any noble Lord wants me to, I will think about it again and talk to people about it. I will gladly talk to any of the associations or authorities concerned, if they want it. On those terms, I hope that noble Lords will withdraw their Amendments, but I give them no undertaking.
§ LORD ILFORD
I am very grateful to the noble Lord. I am not addressing him as "the noble and learned Lord" because, as he rightly says, he left his learning in another place. But I am grateful for having been invited to discuss this matter with him, and I fully understand the terms on which that discussion will take place. I would only say one thing to the noble Lord. He has been at some considerable pains to extract the particulars of the very small authorities. I invite him to have a look at some of the larger authorities. I hope that the noble Lord will not be too impressed by the question of population, because there are many precedents for responsibilities given to local authorities above a certain prescribed level of population.
§ LORD GRIMSTON of WESTBURY
I, also, should like to thank the noble Lord the Parliamentary Secretary for what he has said. He has made the position quite plain. I do not want to keep your Lordships, but I should like to make two short observations in connection with what the noble Lord said. He talked about the good will of the 751 local authorities. I would point out that the Associations speak for their respective local authorities, and they all desire what these Amendments propose. So I think there must be good will.
Secondly, I entirely agree with the noble Lord when he says that this is a question of getting the right balance. He thinks the balance is in favour of the county councils. We think at the moment that it is the other way. But in thinking of it again, as he has promised to do, I hope he will have regard to what my noble friend Lord Ilford has said, and what I also said, about the general theme: that, where we can, we want to do what we can to increase the importance of the smaller local authorities rather than to diminish it. I suggest that this is a factor which should be brought into account when considering what the balance is to be. Having said that, I would again thank the noble Lord, and beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.13 p.m.
LORD MOLSON moved to add to Clause 2:
() The Minister shall appoint a suitable person to be Custodian of Common Land.
() The Custodian shall exercise the powers given to him by sections 4 and 8 and section (Powers of Custodian of Common Rights) of this Act.
§ The noble Lord said: This Bill provides for the registration of two kinds of land, and it provides for the setting up of registers for each: one is a town or village green, and the other is common land. In the case of both these types of old land with public rights over them it often happens that it is difficult or impossible to find the owner. In the case of a town or village green, it is proposed in the Bill that it should be vested in the local authority; but in the case of common land, it is to be vested "as Parliament may hereafter determine". Man proposes, but God disposes, and when this legislation will be passed and implemented nobody knows.
§ We take the view that it is an extremely serious thing that in the case of common land, where either the owner is not known or he does not come forward, that land should be left without any owner for an indefinite time to come. It is largely in order to deal with this point that I have i 752 put down this Amendment providing for the appointment of a custodian of common rights. The dangers of having commons registered as having no known owner have only to be mentioned, I think, to be fully appreciated. There is No 1nducement to the owner of common land to register himself as the owner. The Parliamentary Secretary said in his winding-up speech on Second Reading that this was not a danger that he apprehended. We take a different view. If the owner of land which is either manorial waste or subject to common rights does not register it as common land, and if the commoners do not register their rights—and they may not be interested, or may not know of their rights—then under this Bill that land will cease to be a common, and the owner of the land will, after the lapse of three or more years, become the owner of an ordinary freehold.
§ It was largely for this reason that the Royal Commission proposed that unclaimed common land should vest in a public official. The reasons for this are set out in paragraph 303 of their Report. They proposed that the ownership should vest in the Crown, but that it should be administered by the Public Trustee. The Commons Preservation Society considered this, but they feel that the Public Trustee is an official very much burdened with heavy work and is associated chiefly with financial matters in London. It seemed to us better that there should be an appropriate person, a custodian of common rights, who should be appointed to deal with this matter.
§ I should like to say to the Government, however, that we are not in the slightest degree wedded to any particular way of dealing with this matter. All we feel is that it is extremely important that all these commons should not be left without an owner for an indefinite period of time. If the Government preferred to apply to unclaimed common land what they themselves have proposed should be done in the case of village greens, that would be entirely acceptable to us. But what is extremely serious is that the common land should be left without an owner.
§ It is almost impossible for any criminal action to be taken without the concurrence of the owner, who ex hypothesi will have no existence if the 753 land is registered as being without an owner. A case of this kind arose not long ago on Dartmoor, where the police were anxious to prosecute persons who without legal justification were cutting down and taking away wood; but they came up against the legal difficulty that they were unable to find an owner to give authority for the prosecution to be launched. We feel strongly, therefore, that a custodian of common rights should be appointed. He would have the powers which my Amendments to Clauses 4 and 8 would provide; he would have also the much fuller powers that are dealt with in the new Clause 16, to which I have ventured to speak in order to save time; and he would have the right to register with any registration authority a claim to the ownership of, or to any right in, or over any common land. While in no way wedded to the exact provisions of this proposal, we urge upon the Government most earnestly that it is asking ill-disposed people to encroach upon common rights if there is no provision in this Bill for the ownership to be registered. I beg to move.
Page 2, line 20 at end insert the said subsections.—(Lord Molson.)
§ LORD CHORLEY
I should like to support this Amendment which the noble Lord, Lord Molson, has just moved so very clearly and persuasively. As he has pointed out, there is a need under the registration clause to have some person of this kind to take action. Still more is it necessary under Clause 8, which deals with the very important point—one which has been alluded to by various speakers during the course of the debate, both this afternoon and on Second Reading—of commons the ownership of which is, so to speak, in abeyance, or where the owners cannot be found. I think this is the more important of these two aspects.
This matter was obviously clearly in the minds of the Royal Commission, who gave a good deal of thought to it. I should have thought it was fairly clear that one needs some kind of a national authority to fulfil this requirement; and, looking round, the members of the Royal Commission evidently came to the conclusion that the Public Trustee was the most suitable of the 754 existing national officials to undertake, or to have put upon him, the burden of these two jobs. My noble and learned friend, in his speech on the Second Reading, gave reasons which were very strong why the Public Trustee is not altogether a suitable person to have these tasks put upon him, but that by no means displaces the need for some national authority.
I dare say the members of the Royal Commission felt there was a tendency to the proliferation of authorities. It involves expense and matters of that kind, and one can appreciate that at a time when there is a good deal of criticism of public expenditure there would be a desire to avoid further expense of this kind. But this is obviously a very small matter. This official is not one who will be tremendously highly paid; nor is he going to require much of a staff. On the other hand, it is very important, in relation to these matters, that you have somebody who acquires a really intimate knowledge of the problem with which he is dealing, which is one of the reasons why the Public Trustee would not be satisfactory to do this work. After a time, the custodian would acquire an invaluable knowledge of problems of this kind, and I think there is a strong case for having some person of this sort entrusted with this important work.
If the Government are serious about their desire to move on to the much more important matters of making these commons available to the public, and making them better equipped for agriculture and mat sort of thing, I think it is clear that they ought to accept the recommendations of the Royal Commission in relation to the appointment of an official of this kind.
There are two reasons which are closely bound up with the need for somebody of this kind. There is a tendency, and there always has been—and this is one of the serious matters in connection with commons over the centuries—for common rights to be filched. To "steal the goose from off the common" is a well known phrase. That is what has happened, and it is still going on. Obviously an institution of this kind would be a valuable safeguard against that sort of thing; and that, I think, is a strong reason why this proposal should be accepted.
755 Obviously the law protecting commons—and this is perhaps the same point put in another way—depends to a considerable extent on offending action being done without the owner's consent, without the owner knowing about it, and we are considering, ex hypothesi, a substantial number of commons where no owner is known and where obviously this sort of thing is much more easy to carry out and these rights much more easy to invade. Therefore, if we could have a custodian of this kind, we should, in effect, be providing a considerable safeguard against this type of action, clandestine to a large extent, which has been depriving commoners and the general public, who are to be the inheritors of much of this land under the legislation we are looking forward to. Therefore, I think there is a very strong case indeed for the Government to accept this Amendment or, at any rate, to indicate some sort of method by which the same result can be achieved.
§ 6.27 p.m.
§ LORD MITCHISON
As the noble Lords who have spoken on this Amendment have pointed out, the Royal Commission suggested a vesting of commons in the hands of the Public Trustee for the period they had in mind for registration where there was no other claimant—that is to say, for a period of twelve years. What we are considering now, as I understand it, is what is to happen to unclaimed commons during the much shorter period contemplated by this Bill. This Bill has in mind three years for registration, and two years for objections. Those figures not only have the support of the present Government, but were previously suggested by a Conservative Minister of Agriculture.
We should therefore be appointing someone who will either anticipate the next stage legislation or will do his job for a period of only five years. I do not think such a Custodian will be necessary, and I entirely disagree, with great respect, with my noble friend who said that his duties would be light. In fact, I think my noble friend somewhat belied his own statement by indicating afterwards that during his period of office the Custodian was going to look after encroachments of commons all 756 over the country. The wit of man has so far been unable to prevent the continuing encroachments, of which I gave particulars on Second Reading. How the Custodian, sitting in London, is expected to do this job I fail to understand. Of course, the practical answer is that he would have to be dependent for the complete performance of his duties on the local authorities. He would have to find out from them what the position was; and it would be not merely a matter of correspondence—it would be a good deal beyond that. It seems to me that you would be setting up, not a large Government Department, but quite a substantial department, even at the centre. One has therefore to consider very carefully whether this is really needed.
What is intended is that the Custodian would be empowered to act as a commons registration authority. I cannot quite see why that is necessary. And then he would be someone in whom common land would be vested by the direction of a commons commissioner after inquiry. It seems therefore that his effective period of functioning is going to be considerably shorter even than the five years, because there has to be first of all the lack of claim during the specified period and then the inquiry by the commons commissioner. I find his period of office diminishing rapidly, but his functions would, so far as I can see, conflict as registration authority with those of the counties and county boroughs or, if we accepted the last set of Amendments, of those other local authorities. There is considerable provision in this Bill for the kind of case that I think has distressed the noble Lord who moved the Amendment. I quite agree it does not cover every case, and for this reason there is a provision I am going to deal with in a minute, for commons, in effect, staying as they are until the time when we introduce further legislation.
First of all, if one looks at the case of status, that is to say, common land or town or village greens, in Clause 4 (2), the registration authority may register land as common notwithstanding that no application for that registration has been made. Secondly, under Clause 8 (1), there is a provision that where land has been registered as common land or as a town or village green—that is to say, where 757 its status has been determined, including determination by virtue of the exercise of power under Clause 4—if no person is registered under that section as the owner of the land, the question of the ownership of the land is to be referred to a commons commissioner and the commons commissioner shall inquire into the matter, and if he finds the owner (this is subsection (2)) direct the registration authority to register that person. Then, as regards town or village greens—but I agree not as regards commons—if no one is found the local authority is to become the owner. So it is only in the case of commons and not town or village greens that there can be a gap, and it is in accordance with that that the registration provisions in Clause 1 (3) provide that common land is to be vested as Parliament may hereafter determine.
I was not quite clear from what the noble Lords said in support of this Amendment, whether they intended the vesting in the custodian and his functions to be, as I at present understand, simply for the period until further legislation is introduced, or whether they intended those functions to remain in the further legislation. If it is the first alternative, as I think it is, I have already indicated that it would be a great pity to appoint a person for such a very short period and I do not see sufficient reason for doing it; nor do I see how he could carry out his duties at all simply or easily, as my noble friend was suggesting. If, on the other hand, it is intended to be the longer period, I would say it is anticipating, in the very way in which this Bill is intended to prevent, the contents of further legislation.
It may very well be that when we come to further legislation there will be cases where the local authority is the proper owner to be registered, there being no other claimant—cases, for instance, that would appeal to the amenities societies; and there will be other cases where some form of local management is suitable; there will be cases for some combination of the two, such as seemed possible in the discussion we were having about the Malvern Hills. I am not giving any undertaking about it, but all these things are possible, and it is in order to find out the best way of dealing with the commons in the country that this Bill is introduced. One does not want to say beforehand that 758 the best way of dealing with them is to have a custodian. I cannot see his purpose.
It is said that commons ought not to be without owners. This is strictly a question of management, not ownership. The ownership, I suppose, if there is no ascertainable or existent owner, must be in the Crown. That is the way the Royal Commission looked at it and they regarded the Public Trustee as the best person to manage them. The substantial point is that this is the result, not just of years but of centuries. You are now going to introduce a new official, with a pretty formidable task, for a very short period; or, if you do not do that, you are going to anticipate the decision which ought only to be reached when the full facts are known; and the whole object of this Bill is to get the full facts known. If they were known already there would not be need for the Bill. I have every sympathy with the Amendment; I see exactly what noble Lords have in mind, but I do think that it is not the right way to do it, and it is much better in this instance to leave the unclaimed commons alone for the period of less than five years which is contemplated.
Having introduced this Bill, we are not going to delay bringing forward the second stage legislation. Obviously there are questions of Parliamentary time involved; there are possibilities of one thing and another, and I suppose in five years we shall be having the next General Election. Apart from that kind of question, we certainly intend to deal with the matter, or we should not have brought in this Bill. I feel it would be a grave mistake, and it would have an unfortunate effect on the content of the second stage legislation. I hope therefore the noble Lord will feel able to withdraw the Amendment. But I did not give an undertaking for nothing, and I repeat it. He knows there has been a lot of discussion and correspondence about this, but if he wants me to do any more I will try. I do beg him not to press the point, because I think we all mean the same thing here. I and those who advise me have looked into the matter very carefully, and we really think there is no need for this Amendment; that it would be on the wrong lines and it would not fulfil the excellent purposes he has in mind.
§ LORD MOLSON
The noble Lord has made a case against the Amendments as I have moved them. He has, however, referred to this gap in time between the passing of this Bill and the time when the next legislation will be introduced. He has said it will not be very long; it will be a matter of probably only two or three years or less; there is the time during which Clause 1 operates and, at the end of three years, any rights in commons from their existence as commons will cease under the operation of Clause 1. The Parliamentary Secretary has said this is a problem which has existed for centuries, but the whole thing is becoming much more acute as a result of the introduction of this Bill. If a person who is the owner of common land does not register it, if no one registers it, if commoners' rights are not registered over it, during the three years that Clause 1 is in operation before it becomes final, then no land capable of being registered under this Act shall be deemed to be common land and no right of common shall be exercisable.
The noble Lord himself, on Second Reading, referred to the fact that over long periods of time commons have been encroached upon by neighbouring landowners. We have recently had the case of one who claims to have acquired such land by squatter's rights. I have referred to the difficulty of the police, and of anyone else, in prosecuting those who are almost admittedly taking away from the commons what they have no right to take, simply because it is impossible to find the owner of that common. The Parliamentary Secretary, in his speech, has admitted that there is this gap in time during which no one is registered as the owner of the land. For the first time it is being published to the world, to ill-disposed people, that there is no owner of the land. It is therefore inviting wrongdoers of all kinds to take advantage of this period, be it long or be it short, before the next piece of legislation comes into effect.
I accept what the Parliamentary Secretary has said. He has given us a frank assurance that he will look at these matters again. I frankly admit the force of his arguments against the Amendments which I have moved, but I beg him to look at the lacuna for the protection of commons which his own speeches have admitted, and ask him to take such 760 measures as he can to move an Amendment of his own which will result in this dangerous period being covered.
§ LORD MITCHISON
In order to avoid any future misunderstanding I must make it quite clear that we have looked at this lacuna. We know it is there, and the language of Clause 1 (3) would make it perfectly clear if there were any doubt about it. We know that the lacuna is there. I respectfully agree with the noble Lord that it would be better if it were not, but I do not think that this particular measure will get one out of the difficulty, and we have been unable to find any other way that would. If the Custodian were to be charged not only with the duty of detecting encroachments but, as seems to be said, with the duty of preventing them, he might have a quite formidable task.
However, I repeat that I will gladly look at this matter again. I also repeat that I give no assurance whatever, and my present impression is that the lacuna, though one we would rather were not there, is inevitable. May I add that I think it is a small one? I do not believe that there will be many cases where anybody is going to try to get unrestricted land as a result of a failure to register. There are all sorts of possibilities. I do not want to take up your Lordships' time now. I think there will be few cases where the Custodian would have anything to "custode". I understand what the noble Lord means. He must not expect me to accept his argument offhand. On the other hand, as I said, I will look at it.
§ LORD MOLSON
In view of the assurance of the Parliamentary Secretary, I ask leave to withdraw this Amendment. I have far greater belief in his ingenuity of mind in this matter than he has himself, and I confidently expect that he will find some way of covering the admitted lacuna.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Clause 3:
§ The registers
§ 3.—(1) For the purpose of registering such land as is mentioned in section 1 (1) of this Act and rights of common over and ownership of such land every registration authority shall maintain—
- (a) a register of common land; and
- (b) a register of town or village greens;
§ 6.45 p.m.
Earl FERRERS moved, in subsection (1), after "authority shall" to insert:
open for registration not later than six months after the Act comes into force and thereafter".
The noble Earl said
The object of this Amendment is to make the Bill slightly more specific than it is at the moment. As the Bill at the moment reads:… every registration authority shall maintain—(a) a register of common land;".If the words in my Amendment were to be included, it would then read:… every registration authority shall open for registration not later than six months after the Act comes into force and thereafter maintain—(a) a register of common land;".I had hoped that if these additional words were included it would make perfectly clear precisely when people can go to their local authorities and register their claims to land and their claims to rights of common. At the moment the obligation is merely to maintain a register. I appreciate that there is a certain amount of complication about getting the regulations prepared and so forth, but if these words were inserted into the Bill it would mean that a certain amount of preparation could be done before the Bill became law. If in fact the Bill were to receive the Royal Assent in, say, June of this year, and if the Minister were to bring the Act into force at say December 31, it would mean that as from June of next year claims could begin to be registered, and one would have thought that that would have given a reasonable length of time. That is the purpose of the Amendment. I beg to move.
§ Amendment moved—Page 2, line 23, at end insert the said words.—(Earl Ferrers.)
§ LORD MITCHISON
I ought to explain what is intended about the appointed day because that is really what this turns on. If your Lordships look at the provisions about it, there will be power to bring sections of the Act separately into operation. The intention is not expressed in the Bill, but I can 762 assure your Lordships that we will proceed with diligence about it and bring Clause 3, at any rate, with or without other clauses into operation as soon as the registration authorities are ready to open their registers. Once Clause 3 is in operation, as I read it they are then under the statutory obligation to maintain a register; and, of course, in order to maintain it they must have opened it. Therefore I think that in a narrow sense we go a little further than the noble Earl proposes. The machinery is slightly different, but that is really the only point there is in it.
May I repeat that we intend to bring Clause 3 into effect as soon as possible? Clause 3 can come into operation only when the registration authorities are ready to work, and the moment it does come into operation their registers must be opened and ready for filling in. Therefore, we are trying to do the best we can, and in fact this Amendment would not greatly help because it leaves the appointed day provision exactly as it is at present. So far as opening the register is concerned, we require it to be immediately on the appointed day, whereas the noble Earl would leave an interval, which would not really be necessary because the appointed day would have allowed for the preparation. I hope that I have made this clear, and that the noble Earl will not press his Amendment.
I am grateful to the noble Lord for making the point so clear. I am also glad to note that in fact his intention is to be even quicker than was thought to be possible under my Amendment. I am glad to hear it. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.50 p.m.
§ Earl FERRERS moved, in subsection (1), to leave out all words after the end of paragraph (b). The noble Earl said: At the outset I will put the noble Lord at ease by saying that I do not wish to press this particular Amendment very hard. The only point of it is to ask the noble Lord if he will be good enough to give us some information. As I understand the matter, the main requirements of the register are first as to what is common land; second, as to who are the owners of it; third, as to who or what has rights over it. That basically constitutes 763 the register. On top of that come other varieties of information which may be required to be noted. I assume that this kind of information which will be required is, for instance, whether there are rights of way over the commons and so on. Could the noble Lord give us a little more information as to exactly what type of information is going to be required? For example, will gas, electricity and water easements over commons be required? Will shooting rights be required to be put on the register? Does this also apply to people or bodies who have rights to play tennis, or golf, and other such entertainments or sports? How far in fact will this register go in compiling information?
It seems to me that one wants the register to be as full as possible. If, on the other hand, one makes it too comprehensive one will merely "gum up the works," and the register will become so complex that one will not get all the information one requires. Equally, can the noble Lord explain how much is to be required and how much is to be allowed? If the noble Lords looks at line 27 he will see the words:
regulations under this Act may require or authorise a registration authority to note …".
Can the noble Lord say exactly what will be required and what will be allowed to be noted, because a person may have a claim which will not be required to be placed on the register but which he may wish to be registered. If the noble Lord could give the Committee some information on that, I should be grateful. I beg to move.
Page 2, line 27, leave out lines 27 to 29.—(Earl Ferrers.)
§ LORD MITCHISON
I am grateful to the noble Earl for putting down this Amendment and for making so clear what his purpose was in so doing. The intention of the entries by way of a note is that they should be entirely voluntary; that is to say that, although the registration authority may be required to note them, nobody shall be obliged to make them. If they are made there is no provision for their being supported by statutory declarations; there is no provision about advertisements, nothing about formal applications of any kind. They are therefore simply intended to be, in the 764 most informal sense, notes. It seemed to us that it would be in the interests of persons who had interests of the sort that fall to be noted here to have some note made on the register even if it were of that informal character. It would complicate things considerably if one tried to make it any more.
I will read out the list of examples which I have been given. I can think of many more and I am sure the noble Earl can too, so this must not be taken as an exhaustive list. They are: mineral rights, sporting rights, charges, easements and rights of way. Easements would cover the cases which the noble Earl had in mind in regard to gas and electricity. Rights of way, of course, cover paths and cases of that sort where there is public access. I suppose golf is a form of sport, and it is quite clear that rights of that kind are to be noted. I want to emphasise that it is very advisable to have some provision of the sort for the protection of the people concerned in these rights—which are not, of course, rights of common at all. Indeed, as to some of them it might be doubtful whether in a conveyance of land they would in fact be noted. That is a technical question which I do not want to go into now.
Therefore, it is right to give maximum liberty to note, to attach the minimum consequences to noting, and to make the noting entirely voluntary. This is intended to be a provision for the protection, up to a point—and one cannot go further in a Bill of this sort—of people with these rights. I hope that assurance will help the noble Earl. If I may add a further point, I must repeat that this is a Bill for the first stage legislation only, and that when one comes to the second stage legislation it will not be without use to know that certain people are interested in certain ways, even if one must not attach too much importance to entries on a voluntary basis.
§ VISCOUNT BRIDGEMAN
I am very glad my noble friend has raised this point, but I feel a certain amount of sympathy with the noble Lord opposite in trying to answer it at this stage. But I imagine that all those matters which the noble Lord, Lord Mitchison, has talked about, and all the details which my noble friend has asked for, will appear in the regulations as and when they are produced; 765 that those are the regulations dealt with in Clause 18 of the Bill; and that therefore, if they do not appear satisfactory when they come along, they can be prayed against on a Negative Resolution. If that is so, possibly we may have to wait to deal with the matter in great detail until the time arrives when the regulations are allowed. Am I correct in thinking this?
I am grateful to the noble Lord for what he has said. I also appreciate the remarks made by my noble friend Lord Bridgeman. The object of this was to try to find out in advance of the regulations coming out what was going to be put in them.
Two things still puzzle me on this. As I understand it from the noble Lord, the registration authorities are obliged to fill the register with as much information as is reasonably possible. Is there a difference between their being required to do this and their being authorised to do it? The noble Lord said, if I understood him correctly, that the authorities would not be told that they must put information on their register, but if under the Bill they are required to do so I should have thought that was slightly at variance with what the noble Lord has said. I should have thought his explanation was that under any regulation in this Bill the registration authority may be authorised to do so.
§ LORD MITCHISON
If I may speak again, it is intended to leave to the regulations what kind of entries the registration authorities will be required to make and what kind of entries they may make if they so choose. To take an absurd instance, they might be required to enter rights of grouse shooting, or be authorised to enter rights of playing clock golf. I am deliberately taking a slightly absurd example so that no one should make deductions from it. I agree with the noble Viscount, Lord Bridgeman, that one will have to look at the regulations when they come out before one can do more than give the vaguest indication of what is intended to be done about this. I hope that I have met the noble Viscount's point.
§ VISCOUNT BRIDGEMAN
If that is so, may we hope that between now and 766 the time for making the regulations, the opportunity will be taken to discuss these matters of detail with the various parties outside this House interested in these matters.
§ LORD MITCHISON
There are a great many things that might be put into these regulations. I think the best thing I can say to the noble Viscount is that I have noted with attention what he has said, and I am quite certain that those who will be engaged in administering this Act, whether centrally or in county councils and county boroughs, will have noted it, too. They would be foolish, indeed, if they neglected to consult any persons interested upon any reasonable matter.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ LORD MITCHISON
I understand that it has been agreed through the usual channels that the Committee stage on which we are now engaged should be adjourned at about 7 o'clock. I therefore beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.