HL Deb 23 May 1977 vol 383 cc1088-100

3.18 p.m.

The Earl of KINNOULL

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(The Earl of Kinnoull.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord Aberdare in the Chair.]

Clause 1 agreed to.

Clause 2 [Categories of Lordships to which this Act applies]:

The Earl of KINNOULL moved Amendment No. 1: Page 1, line 9, after ("land") insert ("or other rights"). The noble Earl said: It may be for the convenience of the Committee that we discuss Amendments Nos. 1 and 2 together. Your Lordships will recall that Clause 2 of the Bill deals specifically with the categories in which lordships of the manor will operate under this Bill. They are fairly narrow categories, and I hope that they are accepted in principle. On the Second Reading of the Bill my noble friend Lord Clitheroe raised what I thought was a very valid point about the question of other rights going with lordships, notably empty lordships, such as shooting rights: and, indeed, he raised the question of mineral rights.

The first two Amendments on the Marshalled List are designed to eliminate the question of shooting rights where a lordship is being transferred or sold without any land. The definition of "other rights" we shall come to a little later, in Amendment No. 4. It specifically means the rights of free warren, fishing or other rights (however originating) to hunt or kill game exercisable over the land". It may be to the interest of the Committee to know that the right of free warren is a right to kill four-footed game. It arose, I understand, mostly from grants in the purlieus outside the perambulations of ancient Royal forests which, at one time, covered one-third of Britain. I hope, with that short explanation, I have sufficiently convinced the Committee to approve these Amendments. I beg to move Amendment No. 1.

On Question, Amendment agreed to.

The Earl of KINNOULL moved Amendment No. 2:

Page 1, line 11, after ("land") insert ("or other rights").

On Question, Amendment agreed to.

The Earl of KINNOULL moved Amendment No. 3: Page 1, line 17, after ("land") insert ("other than useful land"). The noble Earl said: This Amendment could perhaps be taken, in part anyway, again with Amendment No. 4 because it covers a phase "useful land", which the Promoters have imported into the Bill. This again is a point made by my noble friend Lord Clitheroe, particularly in regard to the ancient right of minerals which might go with lordships of the manor. As I understand it, this could specifically occur where copyholds have been compulsorily enfranchised under the 1925 Law of Property Act. It is this specific point that it is trying to cover.

What the Amendment seeks to do is to exclude other than useful land. As will be seen a little later, under Amendment No. 4, "useful land" means land upon which there is a building, for instance, a manor house and garden, or which is a garden appurtenant to any building or which is a quarry, a claypit or other place where minerals are extracted or which is, perhaps, just an ordinary agricultural field within the meaning of the Agriculture Act 1947. I hope, again with this brief explanation to meet my noble friend's point, that this Amendment will be acceptable to the Committee. I beg to move.

On Question, Amendment agreed to.

The Earl of KINNOULL moved Amendment No. 4:

Page 1, line 19, at end insert— ("(2) This section shall apply to an undivided share in a lordship as it applies to a lordship but only if the said undivided share is proposed to be transferred to a person who is not the owner of an undivided share. (3) In this section "useful land" means land upon which there is a building, or which is a garden appurtenant to any building or which is a quarry, claypit or other place where minerals are extracted, or which is agricultural land within the meaning of the section 109 of the Agriculture Act 1947 and "other rights" means rights of free warren, fishing or other rights (however originating) to hunt or kill game exercisable over the land.")

The noble Earl said: I beg to move this Amendment, which really covers three points, two of which I have explained. The first deals with useful land and the second with other rights. The one I have not explained covers the question of undivided shares. My noble friends Lord Sandford and Lord Inglewood, both raised the question of what happens where there is a lordship of a manor which is technically owned by perhaps six shareholders—and I am putting this in nonlegal words—and what would happen where one undivided sharer wishes to dispose of his interest. This, again, has been taken up, and the Committee will realise that undivided shares were the survival of old tenancies in common and often arose under feudal law where the lord had only daughters and no son. It is, indeed, somewhat similar to a Peerage in abeyance. The shares could be further divided where the next generation also produces no son but only daughters.

The effect of the Amendment would be that anyone who has an undivided share (a share of the lordship which would come within the scope of this Bill) would have two options under the Bill: either to sell to a fellow shareholder—and there would be no interference with that—or to offer it as a first option to the parish councils. I beg to move.

Lord BARNBY

My intervention might equally have been made on one of the previous Amendments. I did not raise these points on Second Reading because it was obviously preferable to await what the Government spokesman was going to say about my noble friend's Bill. I want to say that I entirely support his intentions in the Bill as a whole, but the Bill raises some points which, I am advised, will affect it as a whole. I select by chance this Amendment on which to express those points because this, I believe, is the first occasion of legislation being put forward since the Select Committee on Common Lands, some 15 to 20 years ago, when our late colleague, Lord Winterton, after very long experience in the House of Commons, took a great deal of trouble in trying to get the Government at the time to bring in legislation, in some degree, on that matter. That would have covered a great many of the points at which my noble friend has aimed in his Amendments today.

It is a matter of great regret to all of us whom these Amendments influence, that although the Government at the time promised early legislation, nothing has been done. The situation with regard to manors (and, therefore, lordships which we are discussing today) has got into more and more of a tangle and the need for legislation is greater than ever. This is particularly so when, with the evolution of time, we find that manors and common lands once virtually entirely in rural areas now practically fall within urban areas.

What I particularly refer to is the provision of this Bill where acquisition is considered with regard to small areas of under three acres. I would address myself to even smaller acreages than that. It seems a pity that legislation should be undertaken and considered by the House without a wider scope of consideration on a matter on which legislation has been promised.

I address myself particularly to the omission of, say, a small area of land—smaller than that my noble friend has mentioned—which, by statutory action prompted by the needs of the community, has entirely severed portions of a manor from the rest of the area; this cutting off, so to speak, being caused by statutory action directed to, say, the construction of highways. The Bill, quite properly I suppose, only calls upon councils possibly to agree to do something. It would seem that there should be ventilated at this stage the serious position of the owners of the soil of manors where such separation from the main body as I have just described through no desire of the owner of the soil, should not in some way (when such action has occurred through statutory requirement) permit a method of relieving the owner of the soil of that particular cut off area—and particularly if it involves the owner of the soil in some action which the public authority may feel themselves obligated to call upon him, for the safety of the public, to carry out, thereby causing possible substantial expense.

While I suppose this cannot be written into the Bill with only the aims which my noble friend has, it seems that it is a matter which should receive the consideration of the appropriate authorities. For that reason, I take this opportunity of drawing attention to something which is certainly a misfortune at present and could and should attract some correcting action.

The Earl of KINNOULL

My noble friend Lord Barnby was kind enough to warn me he was going to raise this matter. I tried to obtain the best advice I could. I am advised—as the noble Lord suspected I would have to say—that this is outside the scope of the Bill. It would come more profitably under the Land Compensation Acts rather than this little Bill. Nevertheless, I am most grateful to the noble Lord, who I know has an interest in a lordship and has great experience in this subject. I am grateful for his intervention and his support of the Bill.

On Question, Amendment agreed to.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

3.32 p.m.

Lord SANDFORD

My Lords, I agree with my noble friend Lord Kinnoull—and my noble friend Lord Clitheroe would, too, if he were here—that the first four Amendments meet a large number of the points that we made on Second Reading about mineral rights, shooting rights, and such like. But there are two further points on which I should be glad to have my noble friend's reassurance, preferably now; but, if not now, perhaps between now and the next stage. First, would he confirm that the sole object of the definition contained in Clause 2(a) is to prevent unseemly transactions in titles which are empty, as it were, by such means as raffles, and so on? That seems to me to be the residual reason for including this point, but I should like my noble friend to confirm that.

The next point which would be useful to have stressed, if my noble friend feels that he can do so, is the reason why parish councils and community councils feel that it is only by acquiring the ownership of the lordships that they can satisfactorily exercise their powers of management over the surface of the lands referred to in Clause 2(b). He explained that this Amendment was necessary in order that they should acquire the ownership of them. But, looking back over our debate, I am not sure that he really convinced me—and I am sure he did not convince others outside this House—that without this ownership they would not be able satisfactorily to manage the village green and the other things mentioned. Perhaps he could try to give us examples of what frustration has occurred as a result of not owning these greens.

The Earl of KINNOULL

I am grateful to my noble friend. He emphasises the bulwark of the Bill, the key purposes of the Bill. The first point he raised about why this expression "no land" is included is something which the noble Baroness, Lady Birk, raised with me. It is entirely as my noble friend suspected. To use his own words on Second Reading, it is an affront to the dignity and pride of local communities. It is that spirit in which this part of the clause is written. There is a feeling that these historic relics—certainly records—are of value. They are valued by historians but particularly by the local people in the parish. It is for that reason that it is put in. I hope that my noble friend supports that.

The second point is again very important. It is the precise reason and indeed evidence of the parish councils for wishing to have a physical control of the centre parts of the parish, the village green, and so on. One has to remember the village green of all parts of a village is the centre core of the village. Often it can range from half an acre up to 20 acres and is a very important part for any local community to keep tidy and to control. As the noble Baroness, Lady Birk, accepted on Second Reading, there is at present not sufficient control exercisable by parish councils or district councils. What they should like to do in many cases where there is damage caused by heavy vehicles, the dumping of bedsteads or mattresses, or builders who dump materials waiting to build, is dig a trench separating the hard road from the village green which will not be unsightly but very effective against the hazards and problems which occur. I hope that sufficiently convinces my noble friend.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4 [Duty to consult]:

3.37 p.m.

The Earl of KINNOULL moved Amendment No. 5: Page 2, line 7, at end insert ("and to inform the owner that they intend so to do"). The noble Earl said: The Committee will recall that Clause 4 lays down a duty on the council which is originally notified by the owner of the lordship that he intends to transfer or sell his lordship, to inform other councils which might be within the parish, lordship or the manor boundary. As the Bill is at present drafted, there is no notification by the council that they are informing other councils. As the Committee will know, at the latter part of the Bill other councils who have an interest in this parish or this manor can take up the right of the option. This Amendment is simply to inform the owner that the original council has notified another council. I beg to move.

On Question, Amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5 [Power of councils to acquire Lordships and conditions as to valuation]:

On Question, Whether Clause 5 shall be agreed to?

3.39 p.m.

Lord SANDFORD

I have a number of points about Clause 5 which I should like my noble friend to consider between now and the next stage. They are points which he needs to consider and on which he will possibly need to introduce Amendments, if he agrees that the points have some weight. First, there is no reference at the moment to what shall be the basis on which consideration of the purchase price shall be measured. For example, open market value. We need to have some reference of that kind.

Secondly, there is no reference as to whom shall bear the cost of the arbitration which is provided for under Clause 5(2). There is no right of appeal. This was raised at Second Reading and there is some force in it. There is no right of appeal on a point of law arising out of the arbitration. There is no indication that the council shall bear the reasonable costs of the surveyor of the vendor in negotiating the terms nor the reasonable legal fees that a vendor must incur in making the transfer to the council.

The fifth point is that I do not think the valuer should determine the proportion of costs for a valuation. It would be more satisfactory, and I think more equitable, if it were to be provided that the proportion should be three-quarters as to the council—since it is the council which is pressing to acquire the lordship and some of the incidental interests—and only 25 per cent. as to the vendor. Perhaps my noble friend will be kind enough to bear those points in mind and incorporate such of them as he considers have weight at the next stage.

The Earl of KINNOULL

I am most grateful for those comments by my noble friend. I think that all those points I took down have considerable merit. I would add that when the Promoters drafted this particular part of the Bill they did so mindful of the fact that all these valuations will be of a very small and simple nature. Nevertheless, I accept what my noble friend has said, which I think covers three points: the open market value, the question of costs and the right of appeal. I will certainly take advice on these matters before the next stage.

Lord SANDFORD

If might make just this point to my noble friend, the general assumption made by the National Association is certainly valid when it comes to small parcels of land in the countryside; but those small parcels, in relation to urban and development land, have considerable value.

Clause 5 agreed to.

3.42 p.m.

The Earl of KINNOULL moved Amendment No. 6: After Clause 5, insert the following new clause:

Application of certain Acts to manorial records.

1922 c. 16, 1936 c. 43, 1972 c. 70.

. The provisions of section 144A(4) of the Law of Property Act 1922, section 36(2) of the Tithes Act 1936 and section 225 to 229 of the Local Government Act 1972 shall apply to manorial records acquired by a council under this Act or otherwise, and such records are specified papers for the purposes of the said Act of 1972.

The noble Earl said: This is a new clause to be put into the Bill which deals specifically with manorial records. It is a subject of which many of my noble friends know a great deal more than I do but I understand that, certainly for a century now, the question of parish records and their preservation has been of considerable interest and concern. I understand there are really two types of records. There were the parish records which were originally books, papers and writings of the parish and, as early as 1874 under the Local Government Act, the parish council became the custodian of these records.

It is interesting to note, in connection with the Local Government Act 1972, that custodianship was not considered satisfactory because a lot of the old records were being eaten by mice. Under the 1972 Act, it became the duty for the district councils to provide, I believe, armoured chests or something of that kind which would combat mice, dampness or any other evil substance which might damage the old records. The most important thing, under that 1972 Act, was that the county councils themselves should have the power to inspect those records and, indeed, I understand that a lot of these ancient and valuable records are now with the county museums and archives.

Manorial records did not have quite such a strong protection, naturally perhaps, since most of them were independently and privately owned; but under the Law of Property Act 1922 the Master of the Rolls was given power to direct that the ancient records be held by museums, and so on, for safe custody. The Amendment put down, which would insert a new clause, basically tries to bring the manorial records into line with the parish records. I accept it is an Amendment which has not been drafted by Parliamentary draftsmen and, if the Government accept the principle of it, I shall do my best to satisfy the Government at the next stage with a new Amendment. I beg to move.

Lord DOUGLAS of BARLOCH

I think we should be a little hesitant about this. I am not al all certain that the proposal will be of benefit. I know of one case in which the owner of manorial rights deposited the relative historical documents with the local authority for safe custody and, some time afterwards, when the owner went to look at them she found that two pages had been torn out. If that is the way in which they are going to be safeguarded by public authorities, I think we want to be a little careful.

Lord CLITHEROE

I should like just to raise one very small point, if I may. I would first thank the noble Earl for the various Amendments he has made to some of the points in which I was interested at the time of Second Reading. In the first line of this Amendment the provisions of Section 144A(4) are referred to. When I looked up the Law of Property Act this afternoon, I found that it was only Section 144. So I think this point needs correction.

The Earl of KINNOULL

I am grateful to both noble Lords. My noble friend is quite right: correction is needed. A major correction of which I have just been advised is also needed. As to the single case mentioned and as to local authorities not being the proper custodians and having allowed damage to those ancient titles, I am as sad about that as I am sure the noble Lord is. I am sure this is a very, very rare case indeed.

On Question, Amendment agreed to.

Clause 6 [Power of councils consulted pursuant to s.4]:

3.47 p.m.

The Earl of KINNOULL moved Amendment No. 7: Page 2, line 25, leave out ("the expiration of one month after").

The noble Earl said: Clause 6 deals with the question of the time-scale in which a council which has been consulted by the main council may serve notice of its intention to exercise its option to purchase. The original draft gave the second council, so to speak, an additional month. It was felt that was really unnecessary when the principle is fairly simple and parish council meetings can be called at fairly short notice. Indeed, in order not to damage any individual rights of sale, I feel that the time-scale should be kept as short as possible and therefore this clause deletes the extra month which was originally granted. So the second council, so to speak, will have the same time as the original council—three months—in which to serve their notice. I beg to move.

On Question, Amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 [Interpretation]:

The Earl of KINNOULL moved Amendment No. 8:

Page 2, line 34, at end insert— (""Independent valuer" means a person who is a corporate member of the Royal Institution of Chartered Surveyors or a corporate member of the Incorporated Society of Valuers and Auctioneers, and has knowledge and experience in the valuation of land.")

The noble Earl said: I feel I should declare an interest over this. Clause 7 deals with interpretations under the Bill. There is no specific interpretation for "independent valuer" and it has been brought to the notice of the sponsoring body that in the past there has been other legislation, notably regulation 6 of the Insurance Companies (Valuation of Assets) Regulations 1974, which imported the very words we are now suggesting should be imported. Basically, the point is that where you call in an independent valuer, I think it is accepted that he should be professionally qualified rather than merely a valuer without any experience—which could happen, of course. I beg to move.

On Question, Amendment agreed to.

3.50 p.m.

The Earl of KINNOULL moved Amendment No. 9: Page 2, line 39, after ("conveyance") insert ("or").

The noble Earl said: This is just a "grammatical" Amendment. I beg to move.

On Question, Amendment agreed to.

The Earl of KINNOULL moved Amendment No. 10: Page 2, line 39, leave out ("probate or letters of administration").

The noble Earl said: This is an Amendment to meet a point made by my noble friend Lord Clithcroe, who pointed out on Second Reading that as the Bill was drafted it could he that, on the death of an owner of a lordship, the operation of the Bill would then apply without his son having the right to succeed. As I then indicated, that was not the purpose of the Bill and we have tried to correct it by Amendments Nos. 10 and 11 to delete the words "probate or letters of administration", and to insert after "marriage" the words, "death or otherwise by operation of law". I beg to move.

Lord CLITHEROE

I am grateful to my noble friend Lord Kinnoull for this Amendment. If I may just point out one other matter in connection with Amendment No. 11, to which my noble friend has referred, I suggest that after the words, "death or otherwise by operation of law", there should be added, "or gift or settlement on the heir or relative", because it is just as important that it should be done when it is a question of a gift by a father to a son, as when the father dies.

The Earl of KINNOULL

I am most grateful for those words from my noble friend. I will certainly look into that point, which I think is a good and valid one.

On Question, Amendment agreed to.

The Earl of KINNOULL moved Amendment No. 11:

Page 3, line 2, after ("marriage") insert ("death or otherwise by operation of law").

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Remaining clause agreed to.

Schedule agreed to.

On Question, Whether the Short Title shall stand part of the Bill?

Lord SANDFORD

I wonder whether my noble friend will reconsider the Short Title. The Long Title is perfectly sound and correct, but the Short Title is misleading, because the very thing that we are not talking about in this Bill is the sale of manors. This is quite clear if one looks, at the definition. It is misleading as a Short Title, and I should have thought that it would be better if it were something like Sale of Lordships of Manors. All I would ask my noble friend to make quite sure about when making any change, is that he does not amend it to Sale of Lordships, which would be even worse!

Lord CLITHEROE

May I add my support to the proposal which has just been made by the noble Lord, Lord Sandford?

The Earl of KINNOULL

I am grateful to both of my noble friends. I will certainly look into that point before the next stage.

Short Title agreed to.

House resumed: Bill reported with the Amendments.