HL Deb 09 March 1965 vol 264 cc30-54

3.50 p.m.

Report of Amendments received (according to Order).

Clause 1 [Registration of commons and town or village greens and ownership of and rights over them]:

LORD MOLSON moved, in subsection (1) at the beginning of paragraph (c) to insert "claims to". The noble Lord said: My Lords, I beg to move Amendment No. 1, which stands in my name. The effect of this would be that, in Clause 1(1), paragraph (c), the wording would be: the registration of claims to the ownership of such land instead of: the registration of the ownership of such land". This Amendment arises out of an exchange between the noble Lord, Lord Chorley, and the Parliamentary Secretary on the first day that this Bill was in Committee. We were trying to elucidate the exact meaning of registration. It emerged, after discussion, that the effect of registration under paragraphs (a) and (b) is very substantially different from registration under paragraph (c).

While this matter was under discussion, the noble Lord, Lord Chorley, intervened, at column 735, and said as follows: … 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'".—[OFFICIAL REPORT, Vol. 263 (No. 42), February 23, 1965.] In reply to that, the noble Lord the Parliamentary Secretary said: 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 carefully 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".

The Government have made other amendments to this clause in order to try to make the meaning clearer; and, in view of what transpired on the Committee stage, I thought it would be a good thing to put this Amendment down for the purpose of clarification. I venture to hope that it will be acceptable to the Parliamentary Secretary and to the Government. I beg to move.

Amendment moved— Page 1, line 11, after ("(c)") insert ("claims to").—(Lord Molson.)


My Lords, on the substance of the matter I have no dispute at all with the noble Lord, Lord Molson. I agree that what are being registered here are, in effect, claims. On the other hand, I am bound to say that, looking at the rest of the Bill, and particularly at Clause 9, as I propose it should be amended in deference to his views, I think there is no need for this Amendment, and I think it would be better to leave it out of the Bill. This is a purely drafting point, so far as I can see: simply a question of whether we insert it in these terms or whether we do not. I myself think it unnecessary; I am so advised, and I do not want to put words into a Bill unless there is some reason for them. There is no difference between us on the substance of the matter.


My Lords, I do not think that is a very satisfactory reply to my noble friend. For years I have sat in this House and heard precisely that same argument—namely, "Why put it in?—because it does seem to be unnecessary". But in this case the noble Lord himself has said that it is necessary, because he has said that it is a claim, and not a title, that is being registered. Anybody picking up this Act (as it will be) will naturally think that paragraph (c) of Clause 1(1) is referring to a title. But it is referring to a claim to a title. The noble Lord says it will do no harm to put in these words. If it will make it clearer, why not put them in?


My Lords, may I support my noble friend? I should have thought that in this case the addition of these two words might make clear beyond all dispute what in fact we are trying to do; whereas, if the drafting of the Bill stays as it is now, it is definitely less clear. Surely we are here to see that the Bill is drafted as clearly as it is possible for us to make it.


My Lords, this is to some extent, I think, a matter of individual judgment, but my own opinion is that the words in the Amendment would not make the Bill any clearer. Indeed, I think they would make it less clear. We quite understand the difference—now, at any rate—between the question of registration under paragraphs (a) and (b), which are dealt with in Clause 9 and are, in certain events, conclusive, and registration under paragraph (c), which raises the rather troublesome possibility of a conflict with the Land Registry registration and, therefore, carries no conclusive element in it at all.

I can only say to noble Lords that I quite see their point. Everybody looks at this in his own way; but I think that, on a matter of drafting, I prefer, not necessarily my own opinion, but the advice that is given me. If I felt, with the noble Lord, Lord Hawke, that this Amendment would make the Bill clearer. I should unhesitatingly accept it. I can only repeat to your Lordships, with due deference, that we all look at these things in our own way; but, personally, I think—and I am so advised—that this Amendment is unnecessary, and would not clarify the Bill.

So far as one can put one's finger on a question of this sort (it is not too easy always to do it; it is very much a question of one's impression of the language), it would look as though what was being registered was a claim in the case of ownership and not a claim in the other two cases. In fact, of course, at this stage, it is a claim in all three cases; and, though it has a different result, that is all that can be registered. People are always registering claims; and to accept this Amendment would, I think, tempt them to draw distinctions between claims in respect of ownership and something else under paragraphs (a) and (b). With great respect, I would invite noble Lords who think otherwise to consider whether what is being registered under paragraphs (a) and (b) is not also, at the date of registration, a claim.


My Lords, at the risk of being told that I really do not understand the question, I am bound to say that I fail to appreciate that this is simply a matter of language. I think there is a matter of substance here. Whether my noble friend Lord Mitchison wants to give way on the substance of the question, I do not, of course, know, but it seems to me that there is a very big difference between registering claims to ownership and registering ownership itself. I imagine that registration of claims to ownership would involve a much wider class than registration of owners. If the noble Lord, Lord Molson, wishes to register this wider class of person—people who claim to be owners of land, but who may not necessarily be the owners—then there is a difference of substance between the two sides. And I should have thought that in that event the Government were right in wanting to restrict the registration to people who are clearly owners of land, of commons, and not to include also people who may have some shadowy, vague or nebulous claim. So I should have thought that, while the difference between the two sides is substantial, the Government are right.


My Lords, I wonder if the noble Lord will explain what happens when there are three people all making claims. Are all three to be registered as owners? Obviously not. My noble friend the Parliamentary Secretary conceded this point in Committee stage, and I should have thought he was conceding the whole argument.


My Lords, in reply to the noble Lord, Lord Silkin, I do not think he followed the very long discussions we had at the Committee stage as to exactly what was the meaning of this clause. The point about it is that Clause 1 says that "There shall be registered …" and then follow paragraphs (a), (b) and (c). Paragraph (a) refers to the land: what land is a common; Paragraph (b) to the rights of common over that land; and Paragraph (c) to "the ownership of such land". The matter was explained to us, and on my representations the Government amended Clause 9 in order to make it clear that the registration under this Bill of any land as common land or as a town or village green under paragraphs (a) or (b), shall be conclusive evidence of the matters registered. That does not apply, however, in the case of the ownership of the land.

The Government have emphasised that there is a complete distinction to be drawn between registration under paragraphs (a) and (b) and registration under paragraph (c). This distinction was not apparent to noble Lords in this House. The noble Lord, Lord Chorley, took part in this discussion; and it was he who pointed out, in reply to what the Parliamentary Secretary had said, that what in fact were being registered under Paragraph (c) were claims. And the Parliamentary Secretary agreed (in what I have just quoted from his speech on the Committee stage) that what, in fact, were being registered were claims, and that when they are registered they do not constitute any title to the land. For that reason it seems to me to be extremely desirable that we should amend Clause 1 in a way that gives effect in words to what the Parliamentary Secretary himself said was intended. Therefore, in a Bill where our relations have been so extremely amicable all the way through, I am sorry to have to press the Parliamentary Secretary to agree to insert the words which he himself on Committee stage said expressed the intention of the Bill.


My Lords, I wish I could help noble Lords; but I do not think it is right to accept this Amendment. I believe it is a minor drafting matter. If it were accepted it could lead to consequences of the character which the noble Lord, Lord Silkin, indicated and which I myself mentioned. I do not think it right for me to accept the Amendment, and I do not think the Government ought to do so. If I may say so, with great respect to noble Lords, there really is no point in this Amendment one way or the other. I should have thought it was a matter in which we might, on the whole, take the views of the draftsmen and of those who have been considering the provisions of the Bill at length. There is no question of principle here. If this Amendment is carried, then carried it will be; and there it is! But, as I understand my duties to the House, I ought not to accept an Amendment which I believe, on balance, to be quite a minor Amendment. I should have hoped, on a matter of this sort, that noble Lords would feel that they might not wish to press the Amendment.

On Question, Amendment negatived.

4.7 p.m.

LORD MOLSON moved, in subsection (3)(b), to leave out all words after "vested" and to insert: in the Public Trustee until Parliament shall otherwise determine. The noble Lord said: My Lords, I beg to move the Amendment standing in my name, which, in the conversations and correspondence that I have had with the Parliamentary Secretary, has come to be known as the "lacuna". The Parliamentary Secretary said in the debate on February 23: We know the lacuna is there. I respectfully agree with the noble Lord that it would be better if it were not … May I add that I think it is a small one?"—[OFFICIAL REPORT. Vol. 263 (No. 42), col. 760, February 23, 1965.] This Amendment relates to what is provided for in Clause 1(3): Where any land is registered under this Act but no person is registered as the owner thereof … it shall … be vested … as Parliament may hereafter determine. That means that where the owner of common land is not registered and is not found, and under Clause 8 the matter is referred for consideration by a Commons Commissioner, it is to be stated on these registers, which are open for the public to examine, that there is no known owner of the common.

We, the Commons Preservation Society, take the view that it is a very serious thing to have this complete lacuna for a period of time where the register shows no-one as being owner of the land. The Parliamentary Secretary has argued that the lacuna will not last for very long. It must certainly last for something like five years. There is a period of three years for the registration of claims to the ownership of land—if the Parliamentary Secretray will not resent my using the phrase in my speech which I should have liked incorporated in the Bill. Then there is a two-year period in which objections can be raised. The question then arises as to when Parliament will have determined how the land is to vest.

The Royal Commission reported in 1958; and this first preliminary Bill is being introduced in 1965. I may perhaps hazard a guess, based on a certain amount of experience of these matters, that if it had not been for the change of Government and the need for more controversial matters to be completely re-examined, a small and innocuous measure like the registration of commons might not even have found a place in the legislative programme for the present Session. What guarantee have we that, after the register of the land is completed, the next and much more difficult, complicated and controversial legislation will be introduced at once? The Parliamentary Secretary has emphasised that before deciding in what bodies these unowned commons are to be vested it will be necessary for the Government of the day to consider the matter very carefully. It does not in the least follow—in fact, it is probably unlikely—that all the unowned commons will be vested in the same persons. Therefore, it is impossible for us to feel any confidence that this new legislation will be introduced and passed very soon after the lapse of five years. As a result, the period during which these commons will be publicly registered as without owners may last quite a considerable time.

The Parliamentary Secretary has also said that he does not think that the fact that there should be no owner during this period of the lacuna, be it brief or long, is going to be as serious as others think. He himself mentioned in his Second Reading speech that in the course of the last century something like half a million acres of common land in England have been lost, and that all that could not have taken place in accordance with the law of the land. Obviously, if there have been such encroachments in the last hundred years, when it was not publicly stated that there was no owner and when at any time the real owner might have turned up to defend his rights, encroachments are likely to take place much more rapidly during the period of lacuna, when it is known that no one is claiming the ownership of the land.

At the present time, outsiders are taking valuable material away from the commons. Recently, there was a case of turf and timber being removed from Dartmoor. The police consulted the Commons Preservation Society as to what measures they could take. They considered that it was impossible for them to take action under The Mischievous Damage Act without the concurrence of an owner, and the owner was unknown. Therefore it appears to us that to have the fact registered that there is no owner is going to be a serious matter. We think that some steps should be taken to preserve these commons during the period of the lacuna.

The Royal Commission recommended that these commons should vest in the Public Trustee but, for reasons I need not repeat, after considering the matter the Commons Preservation Society did not think that he was entirely suitable for that purpose, and on Committee stage I moved an Amendment to create the position of a Custodian of Common Land. That did not commend itself to the Parliamentary Secretary. My noble friend Lord Hurcomb suggested that it might be vested in the local authorities. The Parliamentary Secretary undertook to give careful consideration to this matter with his advisers and see whether it would not be possible to do something to cover the period of the lacuna.

As on Report Stage there is no such Question as "That the clause stand part", I have put down an Amendment to go back to the original recommendation of the Royal Commission and vest these unowned commons in the Public Trustee, not because I think that that is an ideal solution but because it is essential that there should be somebody able to protect the rights of the owners of commons and of commoners during this intervening period, which may not be very brief and will certainly be one of great danger to the commons. I hope that by now the Parliamentary Secretary will have been convinced that this is an important matter and that perhaps he will go some distance towards meeting our representations. I beg to move.

Amendment moved— Page 2, line 6, leave out from ("vested") to end of line 7 and insert ("in the Public Trustee until Parliament shall otherwise determine.").—(Lord Molson.)

4.14 p.m.


My Lords, I hope that I can save the time of the House by speaking now to this Amendment. May I first correct the noble Lord on one point? This Bill was introduced not because we have nothing better to do pending further legislation; it was introduced because this was a matter which had been thoroughly investigated by a Royal Commission and had the blessing of two Conservative Ministers of Agriculture, but over a number of years they had done nothing about it. We thought that it was time to do something. That is the real reason why this Bill is before the House.

Having been contentious so far, I think I need go no farther down the road of contention. I do not think I invented the word "lacuna"—I hope I did not, because I do not like it very much. There are two points here. The first is that under the Bill the ownership of town or village greens, when the owner has not appeared, goes into the hands of the local council. Commons, on the other hand, do not, and their fate is left for Parliament to determine later—that is to say, in the second stage of legislation that we have all had in mind. Consequently, it is true to say that at some time—and I will come to exactly when in a minute—there will be no known or apparent owner of these commons. The reason why I do not think that this problem is so formidable is partly that this state of affairs has gone on for a long time, and though there may not have been a formal decision in many cases it would have been known that there was no owner or no recognisable owner.

The object of the remarks of the noble Lord, Lord Molson, and other noble Lords on Committee stage is slightly different. It is not so much a question of an owner as the need to have someone who may be able to exert the rights which an absent owner is not there to exert, particularly in connection with preventing encroachment, the taking of turf and other kinds of disturbances to the common. It is true that there are considerable powers in this respect already in the Law of Property Act and other legislation—for instance, as regards caravans. I do not need to go into that. But I think that what was said on Committee stage had some force in it—that the apparent absence of an owner might make it difficult for anyone to exercise the powers it was intended should be exercised by somebody. I need not go into the degree of damage that might be so caused.

I must say that I am much indebted to the noble Lords, Lord Molson and Lord Hurcomb, and to the members of the Commons, Open Spaces and Footpaths Preservation Society who came to see me yesterday. We had a long talk about this matter. This is the kind of thing where some practical experience of what goes on is very useful, and there is no doubt that all these gentlemen have considerable practical experience of this problem and desire to apply their experience in the public interest. I hope I shall not be felt to be prejudiced in any way by having been at one time a member of the Executive Committee of the Society when I say that they are one of the bodies whose co-operation, not only in this Bill but also in the second stage legislation, we are anxious to have.

I think that the right way of dealing with this—and I believe we all finally agreed on the matter—is to leave the question of ownership in the Bill (there would be serious difficulties in doing anything else), but to enable someone to step into the shoes of the absent, or apparently absent, owner on questions of prosecution or proceedings to restrain encroachment, pilfering and various other damage that can wrongfully be done to commons.

What we therefore agreed on among ourselves—it is in no way binding on your Lordships, of course—was that something to this effect should be drafted and put into the Bill, subject to getting the consent of the people who will have to act in place of the absent owner. Here, again, I think we agreed (I hope the noble Lord, Lord Molson, does not feel there is any breach of confidence in my saying this: I am glad to see his indication that he does not) that the right people were the registration authorities.

This discussion took place only yesterday; I have not yet had the opportunity of consulting the registration authorities, and I have had some legal points put up to me upon which I am not in a position to pronounce now. Therefore, I have been unable to put down any Amendment on the Marshalled List—indeed, I should have been too late to do so—and I cannot absolutely promise that I can get it done in time for Third Reading in your Lordships' House, but I do say, on behalf of the Government, that we will carry out the promise then given. We will do it if we can in this House, but, if not, we will do it in another place. We will do it as quickly as we can. On the other hand, there is no point in getting this wrong in trying to hurry too much. I must repeat what I said just now: that I think it is not only courteous but necessary in this case to take the views of the county councils and the county boroughs, and particularly the county councils, through their Associations. We have not yet had time to do this.

I want to be clear as to what we are proposing to do. First of all, there is the question of time before the gap, the lacuna, or whatever one calls it, begins. You cannot do anything until the end of the registration period, because the owner may come on the last day of the three years and say: "Here I am. I am the owner." He may be right; and whatever his reasons for the long delay, the only penalty will be that he will incur an expenditure of £5, which he would not have incurred if he had come earlier. Accordingly, that is the earliest moment.

One suggestion made was that if after that the matter went, as it will go under Clause 8, to a Commons Commissioner, one ought to wait until the Commons Commissioner had adjudicated on it. Having thought it over, I do not think that is necessary. Of course, if and when the Commons Commissioner finds the true owner, the functions of the local authority as a temporary policeman will cease, because the owner can then fend for himself. Therefore, my feeling is that this ought to begin as soon as the registration period is over; that there ought to be provision for what must happen if the true owner is found by the Commons Commissioner, and it ought to continue until "Parliament otherwise determines", which is the phrase in the Bill used to indicate the second stage legislation that we all have in mind. I do not think there will be any difficulty about that.

But there is the second point. I used the word "proceedings", and my present impression (I did not go beyond this in speaking to noble Lords and the representatives of the Society yesterday) is that this ought to be confined to criminal proceedings. I think that if you try to deal with civil remedies in this way you get into other difficulties. As I have said, I still have to take full advice about this matter, but that is my present opinion, and I should not wish to give any promise to go beyond criminal proceedings, whatever they are for. I hope I have made myself clear. I have certainly tried to thank both noble Lords who came to see me and the officers of this Society, not only for coming, but for what they have done to improve the Bill.

Before I sit down, I would say one thing which really arises on this Amendment. It is my firm belief that everyone in this House, or practically everyone, really wants this business of commons to be dealt with; that, apart from minor questions on the form of this Bill, and apart, too, from what may be rather more serious differences of opinion when we come to the second stage, we still share a common determination to deal with a matter which has been left for far too long (I am not talking of Party politics over the last few years, but about centuries), and which has resulted in the loss of a large number of acres of our commons which can be of use to the inhabitants, whether by way of access and recreation or by way of agriculture and pasture. I think we are of one mind over that.

I earnestly hope that, while we conduct our differences in the usual and proper fashion of a democratic society, we shall at the end of the day do all we possibly can to get the co-operation of the people concerned. I do not think this is something which can be done by Parliament or by a Ministry. It depends particularly, perhaps, upon the local authorities, and also upon those men and women of good will who are represented in this and in other societies and who have the amenities of the country of England and of Wales so much at heart. I hope, therefore, that what I have said to-day will enable the noble Lord, Lord Molson, the noble Lord, Lord Hurcomb (if he wishes to speak) and any other noble Lords to be in agreement with this, as I think, reasonable solution of this rather difficult question. One could say more about it, but I think it is a satisfactory solution and that it has been found so by those concerned. In these circumstances, and in view of the promise I have given, I hope that the noble Lord will be able to withdraw the Amendment. I have not dealt with the question of the Public Trustee and the Custodian. There are obvious difficulties there which I think the noble Lord recognises.


My Lords, I should like to thank the Parliamentary Secretary very much indeed for the reply which he has given. He said when he rejected one of my Amendments on the Committee stage that he felt "an awful beast". I then said: 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."—[OFFICIAL REPORT, Vol. 263 (No. 45), col. 1120, March 2, 1965.] He has come up to my expectations and has shown himself to have all those merits.

I would only say, in a sentence, that I hope he will look carefully at this matter of civil remedies. In the case of commons, largely as a result of the great building programme, both for houses and also for roads, the illegitimate quarrying of sand, gravel and stone can be extremely profitable to wrongdoers. It may well be that a small criminal prosecution will not prevent people from engaging on a large scale in what can bring in a very large sum of money. I know the Parliamentary Secretary will discuss this matter with his legal advisers, and if it is found to be desirable to extend it into the civil realm, perhaps, in some particular cases, I am sure that he will do so. But in view of his most sympathetic reply, which covers the main point of my Amendment, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

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 except where an agreement under this section otherwise provides.

4.30 p.m.

LORD GRIMSTON OF WESTBURY moved, in subsection (1)(a), to leave out the words "county or" where they first occur. The noble Lord said: My Lords, I rise to move Amendment No. 3. The other Amendments on the Paper standing in my name are consequential on this one. Your Lordships may remember that we discussed this matter in Committee, and that these Amendments raise the issue as to whether the registration authorities are to be the county boroughs and the county councils, or whether they should be the smaller authorities, the boroughs and the county district councils. The boroughs, of course, are mentioned in the Amendments in the name of my noble friend Lord Ilford.

During the Committee stage the noble Lord, the Parliamentary Secretary, while making it perfectly clear that he adhered to the view that the registration authorities should be the larger bodies, nevertheless said that he would be prepared to think about the matter again, to see any deputations which cared to see him, and that in those circumstances we might like to withdraw the Amendments on Committee stage and put them down again on Report. That is the course which we have followed. I should like to thank him for the great courtesy he has shown, and for the time he has spent in seeing a deputation and obviously considering this matter again. I rather hone that perhaps we have shifted him a little, because on Committee stage he said; If we allowed these Amendments, the difficulty would be that the Bill would not work".—[OFFICIAL REPORT, Vol. 263 (No. 42), col. 750, February 23, 1965.] I rather hope that we have shifted him off that particular pedestal and made him come to the conclusion that the matter is a question of balance and of coming down on the right side.

I do not wish to go over all the arguments again, but briefly I would put it like this. The smaller authorities can do the job. In the main they have the staffs for it—in fact, pretty well all of them have the staffs for it—and they already do similar sort of work. I am advised that in no case will an extra grant be required, so there is no question of more money being required for this work. There is no doubt that if the smaller authorities are the registration authorities, it will be a far greater convenience to the local people. Instead of having to go miles to the nearest county hall, they will be able to deal with their own local council office to which they are accustomed to go in connection with local matters.

That is all on the one side. On the other side, it is true that if these smaller authorities are made the registration authorities there will be far more of them—we concede that point—and it will not be so convenient for the Government Department concerned. They will have to communicate with more authorities than they would otherwise have to do. But I suggest to your Lordships that if there is any sort of principle involved here of the convenience of the public, and so on, Departmental convenience is not a consideration which should weigh heavily with your Lordships.

There is another consideration which I would venture to put to your Lordships. We are living in times when more and more work is being taken away from the smaller authorities and put with the larger ones, and local government is becoming more and more removed from local people. Here is a chance to give to the smaller local authorities a job which they can do. It is a chance—I would put it in this way—to strengthen representative government at its roots. I suggest to your Lordships that that is a consideration which should have great weight, and certainly against any question of convenience for a large Government Department.

I do not wish to detain your Lordships, because we had quite a long debate about this point on the last occasion. There is no conceivable Party issue involved in it, and I would conclude by again thanking the Parliamentary Secretary for the time and courtesy he has shown in listening to us, and express the hope that, having shifted him so far, we shall during this debate be successful in shifting him the whole way, and that he will eventually accept our Amendments. I beg to move.

Amendment moved— Page 2, line 10, leave out ("county or").—(Lord Grimston of Westbury.)


My Lords, before the Minister replies may I ask him one question? I am sorry that I was not here at the earlier debate. Would it be possible, if the wording in the Bill remains as it is, for a county council to delegate to the county districts the actual powers of doing the job, rather in the way that is possible with planning orders? I feel that the work of the registration of common rights is going to be uneven throughout the whole county, and although there are some country districts which may have the staffs (and I think they are not all so over-staffed as the noble Lord has led us to believe that they can take on extra work) and where the work of registration may not be very heavy, there will be others that will have a far bigger task and may be less well equipped to do it. Consequently, my feeling is to prefer the words of the Bill, rather than the words my noble friend is proposing. On the other hand, I should like to feel that there was a power in the Bill for a county council, where it felt the work was going to be done better by a district council and that local contacts would be better maintained, to allow the actual routine to be done by the district council.


My Lords, would it be convenient if I answered that question, and then asked the leave of the House to speak again? The responsibility under the Bill rests with the registration authority; that is to say, with the county councils and county borough councils, and they cannot divest themselves of that. On the other hand, as a matter of practice I should have thought there was little doubt that they would have to ask for the help of the district councils. I give that point to noble Lords opposite who have been speaking on the matter.


In other words, act as sort of agents.


Yes. It is an informal sort of arrangement which has already happened to a considerable extent. Your Lordships will remember that the Royal Commission Report contains a good deal of information, and I think it appears in the Report that that information was collected from, or through, the county councils. In collecting that, they clearly had to go, at some points, at any rate, to the district councils—and, indeed, to the parish councils, and to various other people. Somebody pointed out at some stage during the discussions (it was perhaps not in the House but elsewhere) that they also went to the county archivist. There is no delegation to him, but they collected the information in that way. I hope that I have made myself clear.

4.40 p.m.


My Lords, the two Amendments, Nos. 4 and 7, which stand in my name on the Order Paper and which we shall reach in a few moments, deal with the same point as the Amendment that has been moved by my noble friend. With the leave of the House, I propose to say what I have to say now and to move my Amendments, when we reach them, formally. As my noble friend has said, this Amendment is identical with an Amendment which he moved at the Committee stage. The same is true of the two Amendments which stand in my name.

The noble Lord the Parliamentary Secretary at the Committee stage invited us to take part in a discussion with him, although I am bound to say he held out little hope that that discussion would result in resolving his opposition. I should like to join in the appreciation which has been expressed by my noble friend of the sympathetic manner in which the noble Lord received us and the patience with which he listened for quite a protracted period to what we had to say. We are most grateful to the noble Lord for that.

As my noble friend has said, the reasons which have prompted these Amendments can be very shortly stated. County districts in fact keep many more registers than the county councils, and they have a registration staff which they consider will be sufficient to enable them to undertake this additional duty of registering of common lands, town greens and village greens under this Bill. They keep the register of local land charges, building by-laws, road charges, improvement grants and outstanding sanitary charges, and, where planning is delegated to them, as it is in most counties to-day, they keep the register of the charges arising under town planning legislation.

It is really much more convenient that these registers should be kept locally than that they should be kept at the county town. If they are at the county town it, means that persons who desire to consult them—and quite a large number of people do consult them in connection with sales of land—have to make a journey of perhaps twenty or thirty miles to do so. I should have thought that the registration of common land was essentially a local service. County districts are the authorities which are really local. Councillors and officials are local people; they know the neighbourhood in which they live; and local knowledge is of great value in matters of this nature. It was, I think, because of the general convenience of these registers being kept locally, and not by the county councils, that in 1951 the Stainton Committee on Local Land Charges recommended that the registers of local land charges should be kept by the district councils and that county council registers should be absorbed into them. I do not think that has ever been done, and this Bill provides an opportunity for doing so now.

But there is one reason to which I think some of your Lordships may attach greater importance than to these matters of convenience. My noble friend has already referred to it, and I should like to add a few words. These county district authorities have in recent years experienced great curtailment of their powers. That perhaps has been inevitable, with the growth of the cost of local government, the intricacy of modern social services and the need that they should be administered over a wide area; but it is a process which I think the House has always regretted. I think that your Lordships have always desired, if it is possible to do so, to restore to these truly local authorities some functions which are of value in the administration of the country. Here is an opportunity to do that. Here is something which district councils can do more conveniently for the public, and with less expense than the authority which is proposed.

I should have thought—and I hope your Lordships will consider that this is so—that this is an opportunity to do something to restore to these district councils some measure of the responsibilities which have passed from them in recent years. It is these councils that are really regarded by the public as the true manifestation of our local municipal democracy. The public think of them as their local government unit. The county council in most cases seems too remote, too distant and too detached.

In the course of his reply at the Committee stage of this Bill, the noble Lord the Parliamentary Secretary referred to the much greater convenience of dealing with the smaller number of county councils and county borough counci1s rather than the very much larger number of county district councils. That was an argument which filled me with a certain measure of alarm. It would indeed be a poor lookout for local government, particularly for these smaller units of local government, if we were to decide the question of their powers and responsibilities by reference to the convenience of the central departments. I do not desire to add any unnecessary burden to that which is already carried by Government Departments, but one cannot allow those questions of convenience to stand before the much more important considerations of constitutional structure. I hope that your Lordships will take this opportunity to add something to the responsibilities of the county district councils.


My Lords, I am again grateful to the noble Lords and the representatives of the county district associations, if I may so describe them collectively, who came to see me on this matter. I said to them at the end of the meeting that I remained unconvinced; that I thought they had said everything possible that could be said on behalf of the district councils. Your Lordships will be aware that this is the phrase which is always used by the judge who has made up his mind long ago that you had a hopeless case and is going to decide against you: he always tells you that you have said everything you could say on behalf of your clients. I am sure he means it; at any rate, I do. I am quite serious about that.

This is not the first time that there has been a difference of opinion between county councils and county boroughs, on the one hand, and county districts, on the other, as to where was the right place to draw the line between their respective functions. I do not myself think that analogies are very helpful. I am not sure that the distinction is always a very logical one.

I think the nearest case to the particular matter we are now considering is the survey of footpaths by the county councils a little time ago. Be that as it may, the point to consider is who can do the job best—and here I entirely agree with what both noble Lords said—and in what way will the public convenience be best served. I must point out that not only is the number of county districts greater, but their variety is greater too. There are very large county districts: one noble Lord spoke about Epsom during the discussion in Committee; that is a large county district. Then you get down to districts with a population of 500 in Wales—and they cannot spare anybody even to count their numbers accurately, I suspect, or we should not get such a rough figure—and 1,500 in England. It comes down to some very small units.

The other trouble is that the very small unit is in process of disappearing. I imagine that the existing boundaries of counties are not now likely to be greatly altered. With all respect to Rutland unless that was the case I do not see how Rutland could have survived. When we have regard to the county districts the county surveys are now in progress, and I think the general trend of the discussion on the Local Government Act, as it now is, was that efficiency was essential in local government, and that some of these districts were rather small for the purpose. It may be said, "That is all right; that will be a means of weeding out people who are unsuitable to become registration authorities". But I do not think we want, in an Act which is going to have a limited duration only, to rely on changes which are going to happen during the actual currency of the Act itself.

The second objection is the sheer number of county districts. This is not just a question of saving postage stamps or postal dues for Government Departments; it is a great deal more than that. We are trying to do a job which, in many ways, may not be too easy, largely because the variety of circumstances is so large in several respects and because we are dealing with cases that have grown old and in many cases grown obscure. It is essential that the registration authorities should be able to keep in touch with the Ministry, and the Ministry with the registration authorities. When you have to keep in touch with 1,350 or thereabouts, county districts, things become a little difficult.

Moreover, we have heard in the course of discussion, I think on this Bill, certainly in other respects, that some of the county councils have been more enthusiastic than others. That is exactly what one would expect. The enthusiastic councils would be ones like those in the North of England and, to take, an instance in the South, Surrey, where there are a great many commons. But it is a little hard on councils which have very few, if any, commons, to expect them to take the same enthusiastic interest; and we have to encourage them as best we can. There will have to be quite a variety of circulars, exhortations and so on. Exhorting 1,350 district councils is rather a hopeless task. This is just a matter of common sense, and that is the real difficulty about that aspect of the question.

The problem of numbers has another aspect. Some stout mathematicians among those who came to see me said that there would not really be any difference to the number of cases where a common lies within the area of more than one authority. But I think there must be, because every county boundary is the boundary of county districts, and there are a large number of county district boundaries which are not county boundaries. The more boundaries you have, the more overlapping you get from one area to another. So the number of overlapping cases, if district councils are taken as the unit, is going to be much larger.

It is perfectly true that in the Bill there is a provision for dealing with overlapping—it is in Clause 8—and we had some talk about it in connection with the Malvern Hills, where the area lies within three counties. I do not say that is a wholly exceptional case; but think of what will happen if you have to make arrangements for co-operation, such as you would have to in that case, not between those three counties and perhaps some few other groups of counties but between all the district councils which will be concerned if they are used as the units. Co-operation, the selection of one of them to be the registration authority, would have to be very widespread indeed.

I feel over this Bill that one wants good will, and one wants it very badly. It is surely easier to get it on questions or co-operation and the selection of which authority is to be the registration authority between comparatively large units than between the smaller ones. It is not a question of the inherent wickedness of district councils; I do not believe that. It is their sheer number and their small size that seem to me to represent the difficulty.

Then it is said, rightly, that if it is a question of the convenience of the individual against the convenience of a Ministry, there is no doubt which must prevail. I have already said I think it is rather more than the convenience of a Ministry. I think, too, when one turns to the individual, that it ought not to be, and I do not think it will be, a case of having to go every time to the office of the registration authority and deal with matters in that way. We have been talking about the Land Registry. There is a very great deal of land registered in the Land Registry. What has to be done there is not, of course, the same as has to be done under this Bill, but there are some points of resemblance. The flock of bewildered landowners who go to the actual doors of the Land Registry and seek to put their troubles in vocal form is, I understand, small if not non-existent. What in fact they do is to use the post and write, and I think that will happen over the commons registers too. It is quite true that there will have to be a lot of searching for information, but that argument cuts both ways. If you have to go to the county town to get your information instead of to the centre of the local district, you will, at any rate, get more information when you get there. You might well be met at the county district with the answer, "Yes, that is true enough here, but you are asking about something which unfortunately concerns the rural district round the corner". Really, to deal with these matters properly, I think the county council is the right size of authority covering the right sort of area.

I am sorry I got on to a pedestal; perhaps I did. I said I thought the Bill would not work if you had to deal with 1,350-odd district councils. I think I am still on the pedestal a bit, but it does not prevent my saying at the end of it that I think it is a matter of balance, in the sense that there are very strong arguments both ways and they have certainly been put very clearly and well on behalf of the district councils. I do not expect I have done so well as regards the county councils whom I have been supporting, I suppose, in this present division. But I think I am entitled to say that the Royal Commission considered this matter and that they had before them a claim, in black and white, from the urban district councils to fulfil just this function and that they turned it down; that there was thereafter a Working Party under the Ministry of Agriculture which again had to consider this claim, and they turned it down, too. While I would not rest too heavily on authority when perhaps it is really a matter of sense and judgment, I still think that the weight of opinion that has been shown is really conclusive in a matter of this sort.

I hasten to say, even if I repeat a little of what was said on Committee, that I do not myself think that there has been a great shift of balance of work away from the urban and rural district councils to the county councils. I think that Parliament has laid increasing burdens on the councils as a whole. It has given them more and more work to do and taken but little away, and I simply do not believe that there are a large number of people sitting in district council offices waiting for some more work to do. I dare say they could manage this because it is not a very great job; but I think it would strain the smaller ones severely. I would add that they have certainly got a great many responsible and difficult functions already, including, of course—I was going to say their paramount function, but let me say their highly important function of being housing authorities. But this is not the kind of task that they will do so well as the county councils.

I have tried to be fair to all concerned because I do not think this is a matter for more than the usual difference of opinion between county districts and counties. I hope that your Lordships will feel that in this case the balance is in favour of the counties, and that whether you put it on the authority of those who have examined the matter or on the sense and judgment that I hope we all have, one is really bound to come down on that side. I would therefore, I am afraid, feel unable to accept either of the Amendments. I do not know what the movers will wish to do about them, but I hope that they will at any rate accept that we have tried hard to understand and to see their point of view, which personally, in many respects and in other matters, I have often shared.


My Lords, I would again like to thank the Parliamentary Secretary for the care that he has taken over this, but I am afraid that I remain unconvinced that the balance is in the direction in which he says it is. Therefore, I think the only

Clause 9 [Effect of registration]:


My Lords, this Amendment is one that I promised to make in these terms during proceedings in Committee. It is to make it quite clear that the rights referred to in this clause are those of common. I have always thought that the clause was clear enough, but it did not seem so clear to other noble Lords, including one noble and learned Lord. I felt that it was much better to meet any difficulties and to have the matter made perfectly clear to everyone. The Amendment therefore has the effect of ensuring that in Clause 9 the two categories which are conclusive evidence shall be those described as (a) and

thing to do is to seek a decision from this House.

5.10 p.m.

On Question, Whether the said Amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 21; Not-Contents, 32.

Bethell, L. Grimston of Westbury, L. [Teller] Mountevans, L.
Boston, L. Moyne, L.
Brocket, L. Hawke,L Redesdale, L.
Colgrain, L. Howard of Glossop, L. St. Just, L.
Congleton, L. Ilford, L. [Teller.] Somers, L.
Dundonald, E. Killearn, L. Soulbury, V.
Emmet of Amberley, Bs. Long, V. Spens, L.
Falkland, V.
Addison, V. Fraser of North Cape, L. Segal, L.
Archibald, L. Gardiner, L.(L.Chancellor.) Shannon, E.
Beswick, L. [Teller.] Hughes, L. Shepherd, L.
Brown, L. Inglewood, L. Silkin, L.
Champion, L. Leatherland, L. Snow, L.
Chorley, L. Longford, E. (L. Privy Seal.) Sorensen, L. [Teller.]
Citrine, L. Merthyr, L. Stonham, L.
Clifford of Chudleigh, L. Mitchison, L. Summerskill, Bs.
Collison, L. Morris of Kenwood, L. Williams, L.
Crook, L Phillips, Bs. Williamson, L.
Forster of Harraby, L. Robertson of Oakridge, L.

Resolved in the negative, and Amendment disagreed to accordingly.

(b) in Clause 1 and not the category of ownership in paragraph (c). I beg to move.

Amendment moved— Page 6, line 5, after ("rights") insert ("of commons").—(Lord Mitchison.)

On Question, Amendment agreed to.