HL Deb 02 March 1965 vol 263 cc1091-127

5.52 p.m.

Order of the Day for the House to be again in 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 MERTHYR in the Chair.]

Clause 4:

Provisional registration

(2) A registration authority may register any land as common land or as a town or village green, notwithstanding that no application for that registration has been made, and shall so register any land in any case where it registers any rights over it under this section.

(3) No person shall be registered under this section as the owner of any land if the land is registered under the Land Registration Acts 1925 and 1936 and no person shall be registered under this section as the owner of any other land unless the land itself is so registered.


As happened last time, I should like to begin by informing the Committee that there are three Amendments on the Marshalled List on which I think I should warn your Lordships that, if the first of them is carried, the second cannot be called. I will mention them again when the time comes.


In view of the Amendment standing in the name of the Parliamentary Secretary, No. 15A, I do not propose to move my first Amendment, No. 15.


The next Amendment, No. 15A, is one of those to which I have referred. I have to inform your Lordships that if this Amendment is agreed to, No. 16 will not be called.

LORD MITCHISON moved, in subsection (2), to leave out from the beginning down to and including the words "village green," and to insert: () An application for the registration of any land as common land or as a town or village green may be made by any person, and a registration authority— (a) may so register any land". The noble Lord said: The object of this Amendment is to clarify what we have always intended about this clause. Our intention has been that anyone, whether or not he has any legal interest in the land, should be able to apply for its registration as common land, or as a town or village green; that is to say, should be able to apply on the question of status—and when speaking on Second Reading, I mentioned the question of status. Looking at the language of the clause again, and having listened to the arguments about it at an earlier stage, I felt that the language could be improved and the point brought out in a way which possibly was not achieved under the earlier draft. That is the object of this Amendment: to make perfectly clear that any person, with or without a legal interest in the land, can apply for its registration on what we have conveniently called status.

I may perhaps add at this point that there is a wide definition of "person" in the Interpretation Act which will allow this provision to apply not merely to individuals and to companies, but also to groups of persons, as, for instance, the Commons Open Spaces and Footpaths Preservation Society (if I have the title correct), or a local authority; or, for that matter, the Minister. They are all, I think, "persons". It is about the widest word one can use. Perhaps it would not be flippant to remind your Lordships that it is on this very wide definition, or a similar one, of "person" that so many peopde have to pay tax—they are taxed as persons; and local authorities and many other people have to pay tax under that description. I beg to move.

Amendment moved— Page 2, line 39, leave out from beginning to ("notwithstanding") in line 40 and insert the said new words.—(Lord Mitchison.)


I should like to thank the Government very much for putting down this Amendment. It covers the point I have tried to make, both on Second Reading and at an earlier stage, and I welcome it. I am also very glad that the Government now agree that this Bill is not a simple one to understand, and that there may be cases where an alteration in the wording may make it clearer. I hope that this Amendment will be acceptable to your Lordships.


I should like to add a word in support of what the noble Lord, Lord Molson, has said. As the Honorary Secretary for the Council for the Preservation of Rural England, I may say that our Council are particularly grateful for this Amendment. We have on several occasions found it difficult to obtain status in connection with a number of matters in which we have a very real interest but where, as a result of legal difficulties, we have not been accepted. It is good to know that, should we become interested in the preservation of a common, we can now make a claim to have it recognised.

On Question, Amendment agreed to.


This Amendment is consequential. I beg to move.

Amendment moved— Page 3, line 1, after ("and") insert ("(b)").—(Lord Mitchison.)

On Question, Amendment agreed to.


If the next Amendment, Amendment No. 17, is agreed to, No. 18 cannot be called.

6.1 p.m.

LORD MOLSON moved, in subsection (3), to leave out all words after "any land". The noble Lord said: If it is agreeable to your Lordships, I should like to speak to both Amendments No. 17 and No. 18 at the same time. The main point of Amendment No. 17 is to obtain from the Government an explanation of this subsection. It really is not easy to understand. If I may read it to your Lordships with one or two comments and questions, I think your Lordships will agree that it is not altogether lucid. It says: No person shall be registered under this section as the owner of any land if the land is registered under the Land Registration Acts… ". We understand that, because the Parliamentary Secretary has explained that as the registration under the Acts of 1925 and 1936 gives to the owner of the registered land something in the nature of a guaranteed title, it is not thought desirable that the land should again be registered under this Bill. I should, however, like to ask the Parliamentary Secretary whether there is to be any opportunity for the Chief Land Registrar in any case to bring to the information of the local authorities who are keeping these registrations any information which is available to him. I know he is precluded under the Act of 1925 from giving information as to who is the owner of the land. But it is not clear to me whether the local authority which is registering these common lands will be able to ask the Chief Land Registrar whether it has been registered with him as a common, and possibly any other information which would be relevant to the registration of commons.

The subsection goes on: … no person shall be registered under this section as the owner of any other land unless the land itself is so registered. Frankly, I am not at all sure that I know exactly what land is referred to, and I am not quite sure whether this has any bearing on what the Parliamentary Secretary and I have discussed before: dominant land owned by commoners which gives to the commoner common rights over the land. That is my question: exactly what does this subsection mean?

My Amendment No. 18 sought to insert the words "with title absolute" after the word "registered". I follow the line of reasoning of the Government that it would be undesirable to have two registers of titles which conflict with each other. But it is the case that, under the Land Registration Act, there are three kinds of title that can be registered. One is a title absolute, and I can quite follow the Government's objection to that. I move this Amendment so that where there is a title absolute which has been accepted by the Land Registrar there shall be nothing further. But there can also be a possessory title, which is registered with the Land Registrar. That is where, as I understand it—and I am not competent to speak on these technicalities—a person cannot establish an absolute title, but where, without quite knowing what his title is, he has in fact been in possession of it for a long time. Also, there is the registration of a leasehold title. It is not apparent to me why there should be any objection to the registration under this Bill in cases where there is not a title absolute. Those are the questions I want to put to the Parliamentary Secretary in the hope of obtaining elucidation, and I beg to move.

Amendment moved— Page 3, line 5, leave out from first ("land ") to end of line 7.—(Lord Molson.)


I am grateful to the noble Lord, Lord Molson, for the helpful and, if I may say so, friendly way in which he has put his questions on this subsection. It really means exactly what it says, and it therefore means that if the land is registered, and registered with any of these titles, under the Land Registration Acts, 1925 and 1936, no person is to be registered under this clause (which is in effect the whole Bill) as the owner of that land. Your Lordships will bear in mind that the Land Registry receives information on a confidential footing, and it will answer to any one who inquires of it one question, and one question only. That question is whether the land is registered. It will not answer the question of what the title is, and one can see, I think, the sort of reason why it would be improper to do so. But, at any rate, that is not only the intention of the Land Registry but, I think I am right in saying, the clear provisions of the Acts constituted. Therefore, we have here a case of confidential information, that there is only one question that the Land Registry can answer, and that it does, I understand, with great promptitude.

All this subsection says is that if the answer to that question is that it is registered under the Land Registration Acts, there is to be no registration of ownership under this Bill. This does not relate to status, and it does not relate to rights of common; it is purely a question of ownership, and the one and only intention of the Clause 1s to provide as best one may, without altering the Land Registration Acts, which no one wants to do in a Bill of this sort, that there shall not be a conflict; and unless you are going to alter the Land Registration Acts you must, as I see it, have a provision of this kind in this form. I cannot see that any other provision would meet the case. If one takes, for instance, the possessory title—the leasehold title is unlikely to be involved here, although it is possible—one of the difficulties about shortening the period for these registers to remain open to entries, as we have done since the Report of the Royal Commission was made, was that if we were to accept anything constituting a title to ownership, the period we are considering was too short to establish a proper title by virtue of possession. You have to possess for a period of years longer than the three years we have in mind for these registers to remain open. I hope I have made the position clear.

The effect of this Amendment to page 3, line 5, would be that the subsection would read: … if the land is registered with title absolute under the Land Registration Acts. You could not get the answer to that question out of the Land Registry without altering the Land Registry legislation, and therefore it would impose a prohibition which could not be carried out. No stranger could possibly discover the confidential information in the Registry. I am sure the noble Lord, Lord Molson, will agree that, whatever else we do here, we cannot take a Bill about the registration of commons and rights over commons and put into it other provisions altering the whole system of land registration, which after all has been in existence for some time. I said earlier on in the course of our proceedings that when the registers had been closed and the objections disposed of and we came to the second stage legislation, we would at that stage consider whether we could do anything by way of using the information about common rights in the Land Registry. That, too, is not disclosable at present because the only answer is "the land is registered"; and the Registry cannot say anything about what is registered, or in whose name, without breach of confidence and breach of the statutory provisions at present. We should like to look into that point at that time. As I said, we have reason to believe that there are very few entries of common rights in the Land Registry; it is quite exceptional for there to be one. I will, if the noble Lord wishes, look at it again, but I do not see any possibility of meeting this point.


Without expressing myself entirely satisfied, in view of the explanation that has been given, at this moment I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.12 p.m.

On Question, Whether Clause 4, as amended, shall be agreed to?


I should like to ask one question, of which I have given notice, on this clause. There are scattered up and down the country various odd pieces of land which can be described only as derelict or waste, in the sense that they are covered with brambles and thorns and weeds, and are not used for any purpose, either amenity or production, except possibly for the deposit of quite unauthorised litter. One of the difficulties about this type of land is that as often as not it is not possible to trace that there are, or ever have been, rights of common, or who the owner is, or whether it has ever been manorial waste. I should like to know whether, in spite of the fact that the registration authority are never likely to establish any of these things, they would be entitled to register, possibly on the presumption that such land is included in some form of manorial waste; that is, until somebody can come and prove that it is not. I certainly feel that such pieces of land ought to come under somebody's control, because they can constitute a nuisance from the point of view of litter, fire risks and so on.

Perhaps I should declare an interest, of rather an odd kind, in this matter, because I am a Lord of the manor, and when, on occasion, I have asked my professional advisers to define the limits of my empire I have found that they were quite unable to do so. It may not redound very much to my credit, but it does strengthen my argument that there are these pieces of land about which practically nothing is known. I would ask the noble Lord whether it would be possible to register them as manorial wastes, notwithstanding that we have no record that they have ever been so.


I am most grateful to the noble Viscount, Lord Gage, not only for having raised this interesting point with which one has a great deal of natural sympathy, but also for having been kind enough to tell me earlier today that he was going to do so.

Once an application for registration is made, if it is accompanied by a declaration and the prescribed documents, there is no doubt that the registration authority have to register the land. The practical question is, therefore, what is going to be the form of the declaration and the supporting documents, if I may so describe them.

It seems to me that even the most public-minded local authority or other person might find it difficult to declare that the land in question was, in their opinion common land. They might find it easier to declare that it was waste land of the manor. But, as I understand the purport of the Bill, in one form or another they have to assert their belief that it is common land within the meaning of Clause 21 (1), which includes waste of the manor. It is probably true that in a great many of these cases no one really knows who owns the land, or anything about it. It may have been waste for a long time. It may not be a very large parcel of land, but, on the other hand, it may be of use to some person or people and may have possibilities for public access, recreation and so on. I quite see the point.

I think the most one can do is to note the point that has been made and to try, when one comes to the declaration and the documents, not to put too heavy a burden on the persons who are declaring. That is to say, if they have reasonable ground for thinking it is waste land of the manor, they ought, if possible, to be allowed to make the declaration. It may have to depend a little on who the declarant is. The local authority is in a slightly different position in this sort of matter from an individual, and one would have to consider that kind of question when one comes to dealing with the declaration and the accompanying documents.

The other side of the picture appears in paragraph 264 of the Royal Commis- sion's Report. It was their recommendation that claims should be made in the form of a statement as prescribed in regulations by, they envisaged, the Minister of Agriculture. They went on to say that the statement should be countersigned by a responsible person. We rejected that proposal, on the ground that a wilfully false declaration carries penalties under the Perjury Act, which we thought was a better arrangement. It is a common practice to provide for something to be supported by a declaration. Then it was suggested that it should be a criminal offence for anyone to register such a claim if he knew it to be without just cause. That, too, we have toned down. Those are perhaps minor changes in the machinery, but I am sure that they are on the right side. But I think one must have some provision against the quite odd person who often seems to be connected with ancient and obscure rights, and who makes what is described as a frivolous or vexatious claim. He may mean no harm, but he may be so odd that, in practice, it is advisable to prevent him from giving too many people too much trouble over unfounded matters. That is the reason for a provision of this sort.

I have answered the noble Viscount as fully as I can. I repeat that we will take careful note of what he has said, and of the real point behind his comments, and will try not to make the form of declaration and the supporting documents so narrow that claims, about which there is a genuine doubt yet some possibility or probability of their being right, will be turned away.


I am most grateful to the noble Lord, and I think I can attempt to persuade my own authority to register without undue fear of committing perjury. I hope that we shall be able to bring some of these pieces of land under control.

Clause 4, as amended, agreed to.

Clause 5 [Notification of, and objections to, registration]:

6.23 p.m.

EARL FERRERS moved, in subsection (3), to leave out "less" and insert "more". The noble Earl said: This Amendment is similar to the second Amendment which I moved the other day. It is not quite the same, because it refers to the period of objection once the register comes into force. As it is written in the Bill, the period of objection is to be no less than two years. It could, of course, be any length of time. The noble Lord was good enough on the second Amendment to give me an assurance that in fact it was the Government's intention not to delay. Could he give a similar assurance on this Amendment, that even if the period for which objection may be accepted is more than two years, it will not be substantially more than two years? I beg to move.

Amendment moved— Page 3, line 39, leave out ("less") and insert ("more").—(Earl Ferrers.)


May I again repeat that we have every intention of adhering to the timetable that I indicated, I think on Second Reading—namely, the timetable covering the periods both for registering and for objections? We cannot give an absolute promise about it, because one never knows what is going to happen in a matter of this sort. I trust that we shall not be delayed by lengthy proceedings, such as prosecuting the County Clerk of Kent in relation to declarations that he may have made, or anything of that sort. But there are such disembroilable things as that which can happen in a case of this sort. I hope that the noble Earl will again accept my assurance that we hope to put this Bill into operation with diligence; indeed, it would be an utterly ridiculous measure unless we intended to follow it up with substantial legislation.


I am most grateful to the noble Lord for that assurance. I am sure that I can rest contented that he will proceed with the provisions of the Bill as quickly as possible, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clauses 6 and 7 agreed to.

Clause 8 [Vesting of unclaimed land]:

On Question, Whether Clause 8 shall stand part of the Bill?


I should like to ask the Parliamentary Secretary whether he could give us a little more information about the kind of procedure that will take place before a Commons Commissioner. When there has been a registration of a claim by someone who owned a common, and when an objection has been entered, then the registration authority shall refer the matter to a Commons Commissioner. There then, presumably, is something in the nature of a real action at law before the Commons Commissioner; and it appears to me that then, at any rate for the purposes of registration, one will have a case tried to determine who is the owner of the land.

We have been told on a number of occasions—and it has been emphasised in the correspondence which I have been fortunate enough to have with the Parliamentary Secretary—that it is not intended that registration under Clause l (1) (c) of this Bill shall be an indefeasible title. But where the ownership of the land has not been registered under the land registration, and where a claim has been made under Clause 1 (1) (c) of this Bill, where an objection has been raised, and where the matter has been referred to a Commons Commissioner and determined by him, then I believe that that registration becomes final.

But is it the view of the Government that under this Bill the owner who has had this action at law before the Commons Commissioner will have an indefeasible title to that land? If not, then it would appear that there would be some difficulty in persuading claimants to incur the costs of an action of this kind, if at the end of the hearing the decision of the Commons Commissioner is not to be conclusive evidence of title to the land. I should like to ask what kind of evidence anyone who has registered the land and whose registration has been objected to will be expected to bring forward.

6.30 p.m.


This raises the question of what the Commons Commissioner is. He is, it is true, an officer of a judicial character, but one appointed simply for the purposes of this Bill; therefore one whose decisions will not go beyond the purview of this Bill. Taking that as what he is, let us see what now happens. First of all, if land is registered under the Land Registration Acts the question does not arise—I am looking at subsection (1) here. But assuming the land is not registered under the Land Registration Acts, the condition which has to be fulfilled is that there has already been a final registration of the land as common land or as a town or village green—that is to say, its status has been finally determined—but there is no owner registered for the purposes of this Bill. It is only in those circumstances that the question comes to the Commons Commissioner. When it does so come, his first duty is to inquire into the matter. That appears to be a duty which does not depend on any motion or application from outside. It is a duty which it will be unusual to find in the case of a judge.

Subsection (2) says: After the registration authority has given such notices as may be prescribed, the Commons Commissioner shall inquire into the matter.… No doubt the effect of the notices may well have been to bring forward claimants. For his first duty, he has deliberately to look for an owner; and though no doubt somebody has to start the proceedings, in one sense it does not follow that there will be a disputed claim; he is at large as to inquiry into it. That is the way I read the subsection at present. Consequently, the next question is, Who is going to decide his procedure? There is no provision in the Bill that I can find for the Lord Chancellor to deal with the procedure; that is to say, it is not regarded as a matter on which legal rules would be made in the way they so often are in these Statutes. I find that there is a provision for the Minister to make rules in subsection (1) (e) of Clause 18. It is therefore going to be determined by the Minister what is to be done in cases of the kind we are now considering. It is in quite general terms, and I do not think I need go into any detail about it.

The result of all this seems to be that the likelihood of an undetermined ownership is not going to be very large. Moreover, there has had to be a preliminary proceeding. The preliminary proceeding was registration under Clause 4. We have just made it perfectly clear, partly at the noble Lord's own instance, that persons (using a very wide term) may apply for registration in those cases and may do so where no other application has been made; and may further do so in cases (I think I am right in saying this) where there is no question of ownership at that stage. Accordingly, the chances that there will be cases of unclaimed ownership to be dealt with at the end of the day seem to be almost minimal. But if there are such cases I come back to what I said in the last Committee proceedings. We come to what one noble Lord called the lacuna, and it is a lacuna because the ownership of the land will then stay where it is; that is to say, it will be in the Crown. It may be in some person who has not appeared. Nothing will be done about it until the next stage legislation when questions of ownership will have to be dealt with.

It is said in those circumstances, "What about the decision of the Commissioner, if in fact there are proceedings before him and he comes to a conclusion?" I have already answered that point. It seems to me that his conclusion will be that So-and-so has the ownership of the land for the purposes of this Bill, and no more. It will be perfectly open to someone to question, in the appropriate proceedings in open court, whether or not that person really is the owner. I do not think one can get any greater exactitude or finality about these matters at this stage. I would ask noble Lords to bear in mind that what we are now doing is to provide for what, I hope, will be a comparatively short period, after which, undoubtedly, provision will have to be made for dealing with ownership rights and the like in cases where there is no claimant and no apparent owner. That is the best information I can provide for the noble Lord. I feel a little inclined to say that it would no doubt be more convenient if there were no lacuna, but I do not see any practical way of avoiding this temporary difficulty. When I call it "a difficulty", I think it is the right thing to do.


Where the Commissioner is not satisfied about the ownership of a town or village green there will not be a lacuna, because he will then direct, or might direct, that the land shall be registered as belonging to the local authority.


May I interrupt the noble Lord for one moment? I am sorry that I did not repeat it, but I have said it several times already: I was talking about common land. That is, of course, the case.


Yes, but what is puzzling people is that you do not allow a lacuna to exist in the case of the village green but are content to let it exist in the case of a common. It may be that the cases are minimal, but it is not satisfactory that there should be a lacuna in time during which a great many abuses or encroachments might take place on what is held to be common land. It may be that outside organisations fail to appreciate the full complexities of the Bill and of the situation, but that seems to be an unsatisfactory state of affairs, even if it relates only to a comparatively small number of areas which hitherto have been supposed to be common land.


I am sorry I interrupted the noble Lord, Lord Hurcomb, but I had not mentioned a town or village green on this occasion, though I had on previous occasions. That is a comparatively simple case. A town or village green obviously ought to go to the local authority, but it is by no means such a simple case when one is dealing with common land, which is a much wider term and will include things which are completely different.

Our view about the matter is that it will be necessary to deal separately in different areas with the commons, though not so much with the town or village greens, as there is little doubt about them. The Royal Commission were of the same opinion about this matter, and if noble Lords will look at the report of the Royal Commission they will find that they, too, divided their recommendations into two stages; the first was the registration which we are now considering, and the second (the larger part, I think), was the recommendations as to what should be done finally.

Those recommendations were of the most general character; that is to say, you must see what you have got to deal with before you decide what is to be done with a common. You must see not only about rights; you must see about uses, and you must see about the area in which the common is situated. Actually, the considerations that arise in connection with a common within 50 miles of London—and there are many such commons—are likely to be quite different from those which arise in connection with the commons in those parts of the country where there is the largest area of them; that is to say, up in the hill farming area in the North, in the West and in Wales.

We take the view, therefore, that, while it is possible to make an immediate provision as regards town or village greens, if we tried to do anything of the sort in connection with commons at large, we should then, in effect, be trying to do what we believe is impossible at this stage—that is, provide for the ultimate destination of commons before enough is known about them. The whole object of this Bill is to provide eventually for their ultimate use and disposal to the best public advantage. The Bill itself is a preliminary, because, before that can be done, it asks for them to be registered in the way described.

Then it is said that you are giving an opportunity to encroachments, to abuses and so on. It would be very nice—I have said it before, and I say it again—if we could stop up the lacuna immediately. That is what we say we cannot do. We have first to find out what the position is, and that is what this Bill is about. One can at any rate console oneself by saying, for what it is worth, that we are adding a period of five years, or thereabouts, to what has already been going on for centuries. It would not be a good reason if we were going to add a long period, but as it is a comparatively short one then I think it is very much better that all the facts should be right, as we are trying to bring about in this Bill, before we try to make provision for the commons. I am sure your Lordships will feel that this matter has been well thought about, not only by the Ministry for which I am speaking but also by the Royal Commission, and I can see no way of making a temporary provision for commons pending the ascertainment of the facts about them. I hope that I have made my point clearly, whether or not your Lordships agree with it.

6.44 p.m.


I must say that I find it rather difficult to understand why it would be more difficult to deal with commons around London than with commons in Yorkshire. They should all be registered with the local authority. That is the purpose of registration. There surely cannot be any differ- ence about the actual method by which the commons are dealt with, and about the way in which they are going to be used. It seems to me that the noble Lord, Lord Hurcomb, has a very sound point here. The Minister has said that it is not of great importance because this is a very small lacuna. It reminds one of the well-known story about the girl and the illegitimate baby, who explained that it was "a very little one". But I am not at all sure that that will always be so. It seems to me that the situation would be very much simpler—I cannot see how it is going to be more complicated in the way the Minister suggests—if the commons were to be registered, as is going to be done with the village green, in the name of the local authority.


The Parliamentary Secretary has repeated his argument that the commons have been whittled away by encroachments over many centuries; and he asks: "Why worry about the further period of three or five years?" But these three or five years are going to be far more serious than the previous centuries. At that time it was not known who was the owner of the commons. Now, under this Bill, it will be published, for all to know, that there is no known owner of particular commons, and, therefore, no one who can stand behind the legal or other proceedings that are required to protect the commons from encroachment. That is why this lacuna, even if it is only a matter of five years, is likely to be so much more serious than the time which has elapsed in the past.


I venture to think that one can have no better illustration of the need for the lacuna than the views of the two noble Lords who have just spoken. One of them wants the commons handed over to a Custodian; the other wants them handed over to local authorities. They are both quite clear that that is the only way of dealing with them.


I am sorry, but the Amendment for the Custodian was withdrawn; otherwise, I should certainly have supported it. A Custodian would be much better. But I am suggesting, as the Government have rejected the Custodian and are using the local authority in connection with the village greens, that they should use the local authority here as well.


In the speech with which I withdrew the Amendment concerning the Custodian, I said that we were not wedded to that proposal and would be quite willing to agree to local authorities.


Let us put the matter in a very gentle way. It appears that noble Lords see no particular advantage as between the Custodian and the local authorities. I do not think this is fair to the commoners, and I do not think it is fair to the public. I thought we were bringing in this Bill with the consent of the whole House—certainly, with the consent of two former Conservative Ministers of Agriculture who spoke on the matter—for the purpose which I thought everybody agreed was essential: to find out who were the parties and what were the rights before we decided on the disposal of the commons. The difficulty about the lacuna is that we are being invited to make some final disposition of the commons, as I understand it, before we have found out what this Bill is intended to discover. That is the whole point about this business.

I really cannot see what one is going to do with the commons, if it is intended to fill the lacuna. What is the point of handing them over to the local authorities, or to a Custodian, for a short time, if at the end of that short time one is going to make the final and necessary provision for their disposal in the public interest, and in the interest of the commoners and others concerned? I do not regard the short period of the lacuna as a reason or an excuse or anything of that sort. I think it is merely the background of the picture. There are not going to be many of these cases. The cases will be those where something has been going on for a long time already, and I cannot believe that it would be wise to make a provision without sufficient knowledge, in order to avoid having to make it five years later than now.

For those reasons, there is no way, so far as I can see, of avoiding this difficulty in the case of commons; though, as I said before, town or village greens are a very much simpler matter and can be disposed of. I might remind noble Lords that the Commission which dealt with commons did not deal with town or village greens, which are rather a separate matter. I am perfectly willing to take this matter away and listen to any views which anybody cares to present to me, and will come back to the matter on Report stage, if need be. But I repeat that, so far as I can see, there is really no possible means of avoiding a gap of this kind. This is the gap which is in-dictated by Clause 1 (3) of the Bill, which says: Where any land is registered under this Act but no person is registered as the owner … (b) if it is common land"— it is to— be vested as Parliament may hereafter determine. That is the lacuna. We have passed that clause, incidentally, but I am not relying on that, and I really do not see what else one can do in the interests of the commons.

Clause 8 agreed to.

Clause 9 [Effect of Registration]:

LORD MOLSON moved, after under", to insert "Section l (1) (a) and (b) of". The noble Lord said: I hope the Parliamentary Secretary will be able to accept this Amendment, and in saying that, I rely upon what he said in reply to the noble and learned Lord, Lord McNair, in the earlier day's debate on the Committee stage of this Bill. He then pointed out that in Clause 9 the registration is to be conclusive evidence of any land registered as common land or as a town or village green, or of any rights over any such land which, as he pointed out, are the rights of common, but he went on to say "they are not conclusive as to ownership". The registrations which take place under Clause 1 of this Bill are divided into three paragraphs (a), (b) and (c), but, as even the noble and learned Lord, Lord McNair, with his long and distinguished legal experience was not quite sure whether the rights referred to in Clause 9 were the rights under paragraphs (a), (b) and (c) of Clause 1 (1) of this Bill, it seemed desirable to make it quite plain that it is only what the Parliamentary Secretary referred to which are to be conclusive, and not the claims of ownership. I beg to move.

Amendment moved— Page 6, line 4, after ("under") insert ("Section 1 (1) (a) and (6) of").—(Lord Molson.)


I hope I can help the noble Lord who has moved this Amendment. I do not think the language is quite suitable, but I think we can do the same thing in another way. And may I say to him that my reason for wishing to do that is just exactly the one he himself indicated? I went back and thought to myself, "Well, if the noble Lord, Lord McNair, was not quite certain what it meant, it is about time we made it clear". With that in view I am going to move, on Report, the following: The registration under this Act of any land as common land or as a town or village green, or of any rights of common over any such land … If the noble Lord will turn to Clause 1, he will see that that covers in terms the language of paragraphs (a) and (b), and of course it does not cover paragraph (c). It is therefore the same thing. I do not want to have a narrow grammatical argument, but in fact I slightly prefer this language, which in substance is exactly what the noble Lord has asked for, and I hope it is just as clear, except that in my view it is better.


I am much obliged to the noble Lord the Parliamentary Secretary. He has accepted the burden of my argument. I still prefer my own wording, but I will not be more difficult about it than he has been. I beg to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clause 10 [Exemption from Registration]:

On Question, Whether Clause 10 shall stand part of the Bill?


I should like to ask the Parliamentary Secretary to explain the drafting of subsection (1) which says: The foregoing provisions of this Act shall not apply to the New Forest or Epping Forest". Then it says and shall not be taken to apply to the Forest of Dean". I am sure there must be some special reason for that. One would naturally have supposed that the Parliamentary draftsman would have said "shall not apply to the New Forest or Epping Forest or the Forest of Dean". I am sure there is some special reason for this wording, with which I am not familiar.


I can give your Lordships the special reason. Whether the language is wholly happy is a little difficult to say, because the circumstances are rather unsual, but the point about the Forest of Dean is that nobody is really certain whether it is a common or not, and this was thought to be, language suitable to meet that case. I can assure your Lordships that the exemption is as complete in the one case as it is in the other: that neither the New Forest nor Epping Forest nor the Forest of Dean will be affected by this Act. The reason for that is simple enough; it is because they have legislation of their own.


If it is not quite certain whether or not the Forest of Dean is a common, would it not be a good idea if it were made subject to this Bill, in order to find out whether anybody had any rights over it?


The rights are there, but they depend on other things which are not necessarily common rights. There is a good deal of legislation about it and, if I may say so with respect to your Lordships, I think it is better left where it is. It is not an easy question; nor, for that matter, is the New Forest or Epping Forest. I have heard in another place the most vehement complaints by constituency Members about animals from Epping Forest poking their noses into gardens, and indeed into houses round about Epping Forest.

Clause 10 agreed to.

Clause 11:

Subsequent registration under Land Registration Acts 1925 and 1936


(b) if the registration authority is notified by the Chief Land Registrar that the land has been registered under the Land Registration Acts 1925 and 1936 the authority shall delete the registration of the ownership under this Act and indicate in the register in the prescribed manner that it has been registered under those Acts.

6.57 p.m.

LORD MOLSON moved to leave out paragraph (b). The noble Lord said: In order to save time, may I, with your Lordships' permission, also ask a general question about the meaning of the clause, which otherwise I should have put on whether the clause shall stand part? As I understand it, this Clause 1s of special importance in the Bill. I have argued on several occasions on various Amendments that it is unfortunate that registration of claims and rights in respect of commons will appear in two different registers, the Land Register set up under the Act of 1925 and the register set up under this Bill. When the Parliamentary Secretary has said that it is undesirable to have two registers which might conflict, I have suggested to him that it would be most desirable to try to devise some machinery so that rights registered under the Land Registration Act, 1925, should also, provided it were possible to prevent any conflict arising, be registered under this Bill, because then these registers would be available to the public.

In the correspondence which I had with the Parliamentary Secretary about this Bill on this matter of the ownership of common land, he explained the position to me as follows. Where the title is already registered at the Land Registry a claim may not be registered under this Bill, but registrars under the Bill will know that registration has been effected at the Land Registry. In the case of land which has not been registered at the Land Registry, while it must be registered under this Bill to avoid terminal inquiry under Clause 8 and possibly vesting under Clause 8 or future legislation, it will eventually become registered at the Land Registry under Clause 11 of this Bill, after it has been registered in the registers which are being set up.

I take it that these two paragraphs deal with the precise machinery by which, when the registrations have become final, they will ultimately be registered on the Land Register under the Act of 1925. Would the Parliamentary Secretary be good enough to confirm that? And could he explain what is the exact meaning of paragraph (b), which, by this Amendment, I move to delete? I beg to move.

Amendment moved— Page 7, line 5, leave out paragraph (b).—(Lord Molson.)


Clause 11 is, I agree, rather complicated, and I am afraid I did not say very much about it on Second Reading. I think I can summarise its effect. One has to begin with Clause 11 (a). Under that paragraph, common land or a green which is registered under this Bill will become compulsorily registrable at the Land Registry on the first subsequent sale of a freehold or grant of a long lease or sale of a long lease. I am using the words "long lease" roughly. That will, in time, have the effect of getting all the common land and greens on to the Land Registry. That is paragraph (a).

Paragraph (b) is to provide for the Land Registry to notify the Commons Registration Authority of a compulsory registration made under paragraph (a), and when they do so the Commons Registration Authority will delete the ownership registration from the commons register and note in the register that the title is now registered at the Land Registry. The effect of that is to prevent a duplicate registration of ownership, possibly a conflicting registration of ownership, and again to centre the registration on the Land Registry, if I may put it that way. That, incidentally, was a recommendation of the Royal Commission—that those duplicate registrations should be avoided.

Now if paragraph (b) were taken out, you would have a Land Registry which would be up to date and good in law in consequence of paragraph (a), but you would have side by side with it a commons registry entry which could well be misleading to anybody and would have no legal effect at all outside the provisions of this Bill. It is therefore necessary, as we see it, to preserve the principle of one, and only one, conclusive registry for general purposes—and that is the Land Registry.

I am sorry to put a point of this sort in what must sound a highly confusing way, but the real difficulty of it is that it is a complicated business. The principles are that things should be brought on to the Land Registry in time, and that the conclusive registry should be one and only one—and that is the Land Registry, and not registration under this Bill.


I am much obliged to the Parliamentary Secretary for his careful explanation. When I have had an opportunity of perusing Hansard tomorrow I hope that I shall understand it a little better than I do at the present time. I am sure he has explained it quite clearly, but, as he himself says, it is not easy to take in when one is listening to a speech. I am much obliged to him for his courteous explanation. In the circumstances, I beg leave to withdraw—


Before the noble Lord withdraws his Amendment, may I assure him that I shall be only too glad to try to develop this a little further at any time and place convenient to him; and that, if the matter were to arise again on Report, I would again try to consider it. I would not regard what was done now as in any way debarring him from putting any further point.


I am much obliged to the noble Lord for his courtesy. It is quite likely that I shall take up his offer and correspond with him about it. In those circumstances, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clause 12 [Amendment of registers]:


If Amendment No. 21A were to be agreed to, Amendment No. 22 could not be called.

7.6 p.m.


The intention of this Amendment is to meet a point raised by the noble Lord, Lord Molson—and, I think, to go a little further than he was contemplating going. By the Amendment we propose to leave out of paragraph (b): in substitution (on compulsory purchase or otherwise) for any land registered under this Act". The object of the Amendment is to remove a limitation so that land which in future becomes common land may be put on to the registers. There will not be many such cases, but there may be grants of common land and the like; and, of course, some of those grants may be in substitution for some other right or property.

The view we have taken of the point which the noble Lord has raised is that, having regard to the comparatively small number of cases there are likely to be, and on the general equity of the matter, it is right that any future common land—that is to say, land becoming common land in the future—should be put on to the registers by way of amendment; and the same goes for town or village greens. I hope that the noble Lord, Lord Molson, will take it from me that we have tried to meet his point, and, as I indicated, even to extend it a little; and we are very grateful to him for having raised it. I beg to move.

Amendment moved— Page 7, line 16, leave out from ("green") to ("or") in line 17.—(Lord Mitchison.)


I should like to thank the Parliamentary Secretary very much indeed for accepting my point—and for going a little further than I had proposed.

On Question, Amendment agreed to.

Clause 12, as amended, agreed to.

Clause 13 agreed to.

Clause 14 [Quantification of certain grazing rights]:

7.10 p.m.

LORD MOLSON moved, in subsection (1), to leave out "a definite number '' and to insert: shall be capable of being maintained during the winter by the stored produce of the claimant's own land as registered under section l (1) (c)". The noble Lord said: This Amendment seeks to give guidance where there is a right of grazing and no number of animals is stated. The clause as drafted says that, for the purposes of registration under this Bill, a right to graze shall be treated as exercisable in relation to a definite number of animals. My Amendment seeks to lay down a criterion. The number to which I would desire to lay a limit for the grazing rights is the number that shall be capable of being maintained during winter by the stored produce of the claimant's own land as registered under Section l (1) (c) of this Bill.

There are, unfortunately, many cases where too many animals are turned out on the green in winter. A great deal of distress is caused when the commoner's own land cannot support them. A great deal of public attention has been drawn to this in connection with Dartmoor, but I think the same applies to many other commons. It seems that, when registration is going to substitute a definite number for an indefinite number, that number should bear some relationship to the accommodation which the commoner has on his own land at a time of year when he is not exercising his grazing rights. I beg to move.

Amendment moved— Page 7, line 41, leave out ("a definite number") and insert the said new words.—(Lord Molson.)


This is a very old matter. There used to be what was called a rule of levancy and couchancy that you could put on the common only the number of beasts that you could keep in your farm for shelter; and it was administered by the manorial courts which have, some time since, in most cases disappeared. The specific point was considered by the Royal Commission, and their recommendation—and I am going to quote from paragraph 274—was: Each claimant should be free to claim those rights of pasture which he believes he is entitled to. Then they go on to point out that where there are stints (that is to say, arrangements for partitioning or dividing the rights of common or pasture) the question really does not arise. It is only in cases where there are no such rules that it arises; and about that they say (and I quote from the same paragraph): Under modern conditions to attempt a definition according to the winter carrying capacity of the farm—a revival, that is, of the old rule of levancy and couchancy—or according to the valuation of the farm as a pastoral unit would often be more a test of the capabilities of the farmer than of the capacity of his land. When I read that paragraph I was not quite sure whether the reference was to the capacity of the farmer as a farmer or to the capacity of the farmer as a claimant. However that may be, I see the practical difficulty of doing it.

I can assure the noble Lord that not only did the Commission give consideration to this, but we too have done so. The short answer is that you simply cannot do it; there really is no way. The manorial courts, as I have said, have in practically all cases disappeared and conditions have changed so much that the old rule would now be impossible to apply. It was a part of the manorial system and if you had to apply it properly and fairly you would have to go back and find out what in each individual case that particular system was.

The conclusion we have come to on this matter, in common with the Royal Commission, is that you get rather an arbitrary division and it would, in fact, not bear much relation to customary or existing usage in the common in question. I see the object of this; so did the Commission. They did not regard it as altogether satisfactory that a claimant should be free to claim whatever he believed he was entitled to. They considered various possibilities, and they finally decided that there is really only one course—and I quote paragraph 275—and that is: to allow the commoner in his claim to rights of common to pasture, to define them himself. In other words, to allow him to claim whatever he believes he is entitled to. Then they say: If our recommendation is accepted we do not think that in practice it will work badly. In most places the commoners will settle their individual claims by discussion before registering them, some in their present associations or manor courts, the others in all probability by getting together informally in the parish hall or bar parlour. I think there is a great deal of common sense in that, although perhaps the Royal Commission took a somewhat optimistic view of the commoners. I am inclined to think that this provision would in fact work out all right. But I am afraid that the Amendment would be impossible of application, and might produce arbitrary results. Again, I should be only too glad, if the noble Lord wished to make further points when he has considered the Royal Commission's point of view on the matter, to bring this question up again on Report stage or to assist him to do so in any way I could.


I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clause 15 agreed to.

Clause 16:

Commons Commissioners and assessors


(2) Any matter referred under this Act to a Commons Commissioner shall be dealt with by such one of the Commissioners as the Chief Commons Commissioner may determine, and that Commissioner may sit with an assessor selected by the Chief Commons Commissioner from the panel appointed under this section.

(4) A Commons Commissioner may order any party to any proceedings before him to pay to any other party to the proceedings any costs incurred by that party in respect of the proceedings; and any costs so awarded shall be taxed in the county court according to such of the scales prescribed by county court rules for proceedings in the county court as may be directed by the order or, if the order gives no direction, by the county court, and shall be recoverable in like manner as costs awarded in the county court.

7.18 p.m.


This Amendment merely seeks to establish the principle that the Chief Commons Commissioner shall not select any Commons Commissioner or Assessors to deal with any claim affecting any land situate less than 30 miles from his normal place of professional business. It is important not only that justice should be done but that it should be seen to be done. It does appear undesirable that someone should exercise an important quasi-judicial function of this kind in a vicinity where he is known and where he may be suspected of having business relations with one of the parties to the dispute. I beg to move.

Amendment moved—

Page 9, line 15, at end inser— Provided that the Chief Commons Commissioner shall not select any Commons Commissioner or Assessors to deal with any claim affecting any land situate less than 30 miles from his normal place of professional business".—(Lord Molson.)


I much appreciate the reason why this Amendment has been put forward. As the noble Lord rightly put it, it is not so much a question of ensuring justice as of ensuring that justice should be apparent. But I am afraid that this is a matter that should be left to the Chief Commons Commissioner himself. One could and should provide in some form or another, either by regulations or some administrative arrangements, that commissioners with an interest should not hear any claim. But this is a geographical limitation and I think it is rather too wide. There will be cases where the local knowledge of the Commissioner may save the parties quite a lot of time and trouble without in any way impeding the course of justice. I think that the effective prohibition of an interest is the right way of doing it, and that beyond that we should leave the matter in the hands of the Chief Commissioner. The noble Lord will recollect that the Chief Commissioner and commissioners are all legal gentlemen of considerable experience, and where a commissioner is functioning the code of his own profession will be a pretty effective deterrent to any damage and an effective justification in the eyes of the public. After all, to take an obvious instance, the clerk to the magistrates is often resident in or near the area of the court and often carries on practice as a local solicitor. I have never heard anybody complain of that fact, although they make many complaints about the courts in other respects.


I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD MOLSON moved to add to subsection (4): Provided nevertheless that upon the application at any stage prior to the issue of a writ of any party or of the Custodian of Common Rights, the Chief Commons Commissioner shall have power at his discretion to certify in any particular case that because of the complexity of the problems to be resolved or that the subject calls for a decision of great importance to the public, the costs of proceedings shall be at High Court scales and liable to taxation by the officer of the court.

The noble Lord said: There have been many long and costly actions at law with regard to commoners' rights and the ownership of commons. If it had not been for these actions and suits in Chancery in the nineteenth century, the commons around London, which are now available for the enjoyment of the public would have been enclosed and used for building purposes. It is quite possible that the course of proceedings before the Chief Commons Commissioner under this Bill may be long and costly, and it may be that the costs of the proceedings should be rated at High Court scales and liable to taxation by the officers of that court, rather than, as provided in the Bill, at county court level. I hope that this will not arise, but it is impossible for any one to say that it will not. Therefore, we feel that the Chief Commons Commissioner should have the discretion to determine costs at a higher level. If it did occur, it would be important that where a claimant had had to face a long and vexatious dispute, and was successful, he should be able to recover costs on an appropriate scale. I beg to move.

Amendment moved— Page 9, line 33, at end insert the said subsection.—(Lord Molson.)


This Amendment raises to some extent the question of balance of convenience. I do not think that there is such a thing as a High Court scale of costs. Costs are taxed on established principles, and there is a considerable variation in the application of those principles. One could no doubt think up something on those lines, but that is not the real point I want to make. The county court scales of costs are varied. If I remember rightly, there are four separate scales, and quite a considerable provision for costs can be made in a proper case under these scales.

The broad question is whether we ought to let what is an inferior court—a special court, if you like, but an inferior court—award High Court costs in cases of this kind. I think that I am right in saying that it is not done as a rule. There are cases where costs are entirely left to the discretion of the judge or person acting as judge, as they are in ordinary arbitrations. But here I believe that the introduction of High Court costs, or, if I may take it generally, higher costs, would do more harm than good, even if it were at the discretion of the Chief Commissioner. I do not think that any of these cases is likely to be a major lawsuit, in the usual sense. Access to the courts is already open for cases where access to the courts is required, and there is nothing in this Bill which prevents people litigating, if they choose to do so. It is intended to provide a simpler and, I hope (in spite of the complexities of the matter), a cheaper and easier way of dealing with the question before us—how to ascertain the commons and the rights over them.

Therefore, on balance, I would suggest,—feeling, if I may say so, rather a beast in suggesting it, because I have already rejected some of his Amendments—that this Amendment would be a mistake. The best opinion my advisers and I can form of it is that, on the whole, we do not think it would be useful. I recognise that the power is discretionary, but it is a discretionary power that ought to be used rarely, and I think that, on the balance of convenience, it is better to lay down definitely that proceedings should be dealt with on one or the other of the county court scales. I have the figures of these here, but I do not think the noble Lord will want them. There is quite a difference between the several scales.


I noted with great satisfaction that the Parliamentary Secretary felt that he had been rather a beast to me. I hope that he will not forget that he feels he has been a beast, when some of the more important Amendments I have put forward are considered on Report stage, and that he will take action in order that I may be able to say that he has not been a beast, but the kind of friendly, conciliatory and statesmanlike Parliamentary Secretary I really believe him to be. In view of his explanation, I beg leave to withdraw my Amendment.

Amendment, by leave withdrawn.

7.27 p.m.

LORD MOLSON moved to add to Clause 16: () The Lord Chancellor shall have power to make directions as to the custody of any document produced in connection with the establishment of title with regard to common land or common rights.

The noble Lord said: This is a technical Amendment, which I was asked to put down because it appears to be important that the Lord Chancellor should have power to give directions as to the custody of any document produced in connection with the establishment of title in regard to common land or commons rights. I may be told that the Lord Chancellor already has power, or that in any case documents would be in safe custody; but in view of the appalling complexity of the disputes about commons rights, where some useful document is produced in the course of proceedings, it is most important that it should remain available for the future. I beg to move.

Amendment moved— Page 9, line 33, at end insert the said subsection.—(Lord Molson.)


I fully understand the reason why this Amendment has been put forward, but I feel a difficulty in accepting it. The reason is that full provision for dealing with manorial documents is already contained in the Second Schedule to the Law of Property (Amendment) Act, 1924. It begins with the general provision that all manorial documents shall be under the charge and superintendence of the Master of the Rolls, and then provides that they are to remain in possession of, or under the control of, the Lord of the manor for the time being, but that he must not destroy or damage them. The Master of the Rolls may from time to time make inquiries for the purpose of ascertaining that any manorial documents are in proper custody, and if he thinks that they are not being properly preserved he may direct to have them transferred to the Public Record Office, and so on and so forth.

There would be a conflict of duties and responsibilities between the existing legislation and what is proposed by this Amendment.

I do not say again that I am a beast. I would rather suggest to the noble Lord that the matter is fully covered by the 1924 Act, and there is no need for the Lord Chancellor to have a battle with the Master of the Rolls (what a terrible scene it would be!) as to who is to deal with documents.


I am obliged to the Parliamentary Secretary. I had an idea that the point might be covered, but I was not aware of that particular matter. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clause 17 agreed to.

Clause 18 [Regulations]:

7.31 p.m.

LORD MITCHISON moved, in subsection (1), to add after paragraph (f): () for enabling the Church Commissioners to act on behalf of the incumbent of any ecclesiastical benefice of the Church of England which is vacant".

The noble Lord said: This is a simple matter, but one which was overlooked when the Bill was drafted. This Amendment is to enable the Church Commissioners to act on behalf of the incumbent when an ecclesiastical benefice is vacant. There are many ways in which an incumbent can come within the provisions of this Bill. I understand that a curate who is carrying out the incumbent's spiritual duties could not deal with this particular matter; therefore it is necessary to have a provision of this sort. I can assure your Lordships that the Church Commissioners welcome it. I beg to move.

Amendment moved— Page 10, line 27, at end insert the said subsection.—(Lord Mitchison.)

On Question, Amendment agreed to.

LORD MITCHISON moved, in subsection (2), after "therein" to insert: and any land to which rights of common registered therein are attached, ".

The noble Lord said: This is an Amendment to Clause 18 (2), and it would insert after "therein" certain words referring to the dominant land, as we have called it during these debates. This is a subsection which applies to maps to accompany applications for registration and to form part of the register finally; copies to be deposited and the like—I need not go into all the details. This is simply to cover the dominant land, and exactly the same principles apply to it as apply to common land.

I should like to take this opportunity of correcting a small—perhaps your Lordships will think verbal—slip of mine at an earlier stage. I said that dominant land would be noted, but not registered. I ought to have said that it would be registered, but it would have no more effect than the registration of any other land which we discussed earlier. I noticed it used in a peculiar sense in Clause 3 of the Bill. It does not apply to dominant land. I hope I have made this clear. I beg to move.

Amendment moved— Page 10, line 41, after ("therein") insert the said words.—(Lord Mitchison.)

On Question, Amendment agreed to.

EARL FERRERS moved, after subsection (3), to add: () Before making any regulations under this section the Minister shall consult with such organisations as appear to him to represent the interests of owners of common land and holders of rights of common.

The noble Earl said: This Amendment is a perfectly simple one which I feel sure will commend itself to the noble Lord opposite. He was good enough at the beginning to put your Lordships in the picture and say that he would not be able to accept many Amendments. I rather assumed that this meant he would be able to accept some, and as I think to date he has not accepted any other Amendments than his own, I look forward to this one, at least, finding favour with him.

The Amendment provides that before making any regulations his Department should consult with any bodies who they think can be of assistance to them in framing the regulations. There must be many bodies throughout the country which could help his Department, and I hope the noble Lord will agree that the Department should be obliged to consult them. This is not new wording. I think the noble Lord will find that it appears in many other Acts. The noble Lord said the other day, in answer to my noble friend Lord Bridgeman—and it encouraged me greatly—that these gentlemen would be foolish if they neglected to consult with persons interested. I hope that the inclusion of these words in the Bill may prevent these foolish people from becoming evident. I beg to move.

Amendment moved— Page 10, line 46. at end insert the said subsection.—(Earl Ferrers.)


Was ever an Amendment moved so persuasively? But these good beginnings do not always end so well. What I have been doing—and it is very much what I am doing in this case—is to say how much I agree with the principle of a good many of these Amendments, and in some cases having looked particularly to the language of the Amendment put the point in a slightly different form. But this is a case of making regulations covering a wide field. I repeat what I said the other day: that a Minister of Land would be very foolish if he did not consult the persons interested. This Amendment, however, refers to one group of persons interested—namely, the owners of common land and holders of rights of common land. There are other people, too. There are the local authorities, and I could think of a good many more. It seems to me that there would have to be quite wide consultations in framing these regulations.

If I remember rightly, the noble Viscount, Lord Bridgeman, pointed out in this case that the question he was raising would really arise on the regulations themselves. I think it is unwise to tie the Minister by Statute to consult a particular group—a very important group, I agree—in every case and not to mention other groups who would have to be consulted in other cases. I think, in short, that in a Bill of this kind the right course is to suppose that the Minister is a moderately sensible person—my own Minister is more than that—and he will not make regulations without consulting these people in most cases, and other people in other cases. Therefore I trust that the noble Earl will accept the assurance of good intentions and not try to get it put into the Bill, because I think in a Bill of this kind it would only cause confusion to mention one case when there are many others falling to be consulted.


I must say that for quite a long time I have been trying to discover what arguments the noble Lord could think of to bring up against accepting this Amendment, and I could not find any. I misjudged the noble Lord's ingenuity. However, I see the point he has made. I would not, of course, press him over this matter at the moment, except to ask him whether he can think about it again—he has been good enough to say that he would—because we are dealing with people who have had interests and rights in common land, and it would seem reasonable that they should be consulted. I agree that there may be other people who should be consulted as well.

I wonder if there is any possibility before the next stage of the Bill of seeing whether there are any words that might suit the noble Lord and which would request the Minister to consult with the people concerned before actually making the regulations.


I will gladly do that; in any case, I said that I would. I mentioned local authorities, and perhaps I ought to have mentioned to the noble Earl the other group of people who are likely to be concerned. These are substantially the commoners, the agricultural interests, and so on. There are also the public amenity societies, the commons, footpaths and open spaces people, the Council for the Preservation of Rural England, whose honorary secretary is the noble Lord, Lord Chorley, and others of that kind. When it comes to the second stage legislation, that is the balance we shall have to keep between the kind of people referred to in this Amendment and the more general interests of access and amenity, whether represented by local authorities, by these societies, or in any other way. I will look at it, but I am afraid I see little choice between something so vague as not properly to meet the noble Lord's intentions, and something too narrow which will admit people whom one can think of afterwards and say, "Why did we put this lot in?" I will do my best.


I am very grateful to the noble Lord, and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 18, as amended, agreed to.

Clauses 19 and 20 agreed to.

Clause 21 [Interpretation]:


There is no need for me to move Amendment No. 33. The Parliamentary Secretary moved Amendment No. 15A which refers to any person, and under the Interpretation Act, 1889, my point is covered. I am much obliged to the noble Lord for drawing my attention to this point.


The object of this Amendment is not merely to bring the Committee stage to an end with a flourish of the English language, nor indeed to request learned gentlemen continually to refer to the dictionary when trying to find out what this Act means. It is really to find out why these categories of people who have an interest in common land have been omitted. The Bill says that rights of common include cattle gates and beast gates. By saying that it includes them, it presumably means that there are other rights as well. Later it says, 'town or village green' means … ". This is much more specific. I wondered whether it was possible to be more specific as to all the rights of common land. Admittedly they include cattle gates and beast gates which are, after all, rights of grazing. These other rights which I have mentioned, such as estovers and pannage, refer to rights of having pigs, cutting turf and wood, and these other curious rights which still remain. Are they to be included and, if so, is it possible to put them into the Bill; or is there any reason why they have not been included? I beg to move.

Amendment moved— Page 12, line 3, after ("includes") insert ("estovers, pannage, piscary, turbary,").—(Earl Ferrers.)


I have a great deal of sympathy with this Amendment, the more so because when I first read this definition I shied like a frightened horse. I said to myself, "This says it includes so and so, but surely one must be able to indicate what rights of common are." I then tried, and I can assure the noble Earl that quite literally I spent hours over this, but I could not find a form of words which covered rights of common properly. Having said that, may I point out, as he has already pointed out, that town or village green is a real definition. This is not a real definition. It is taking rights of common and including with them a number of rights which are not even rights of common, or are very doubtful rights of common, whereas the ones he has mentioned are in fact true rights of common.

Then one says, "Well, if those are true rights of common, why not put them in?" The answer is because there are other rights of common, too, and they have not got these nice, picturesque names. They vary from one place to another. For instance, I do not think the noble Earl's list includes the rights of taking gravel and things of that sort, which exist in some places and not in others, and can apparently be rights of common. Halsbury on this subject has a long article about rights of commons. I tried to find a phrase that would cover it. The nearest phrase one can get is, "taking produce from someone else's land without disturbing the soil", or something of that sort. But that will not do because that may be done in many ways otherwise than by exercising a right of common.

I was therefore strongly advised (and I am sure that the advice given to me was right) that one has to leave "rights of common" as it is, and that is largely why I advise people to go and see a solicitor if they are in doubt. It really is a term of art, and you have to accept it. It is impossible to find a clear and compendious phrase that covers it, and if you try to find one you leave people out. Therefore, the right thing to do is, I believe, as I was advised, to take it as a substantial phrase, and not add these other doubtful rights. There is one consolation. Where there is any practical doubt about this, it will come before, the Commons Commissioners, who will probably know when they begin, and certainly after a short time, more about rights of commons than most people do. I think this is the right way to do it. I hope the noble Earl will not think I am a terrible fraud. I am glad he raised the point.


The last thing I should think the noble Lord was is a terrible fraud, and I am sorry he should have spent so many hours considering either this Amendment or this clause. Before withdrawing the Amendment, I should like to say that he has obviously spent hours on this Bill, and I would thank him very much for the kind and courteous way, and the most thorough way, in which he has dealt with everybody's Amendments. It really has been most encouraging. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Clauses 22 to 24 agreed to.

House resumed.

Bill reported with Amendments.