Mr.
Williams: With due respect to the right hon. Member for
Penrith and The Border, the purpose of this Bill, if I understand it
correctly, is to repeal the whole of the 1965 Act. It is a question of
amending not the Act, but some of the entries in the register, which he
addresses. It is correct to do so, because obvious and glaring errors
have been entered into the registers. The hon. Member for South-East
Cambridgeshire cites an instance of an individual who would have
registered grossly more than his rights in relation to a common.
However, let me give the example of two contiguous commons that are
both in my constituency and in a neighbouring constituency. On one, the
commoners got together and decided to register—I think—10
sheep to the acre but, on the adjoining common, the commoners got
together and decided to register one sheep to the acre. Not
surprisingly, the sheep moved from one common to the
other. I wanted the
opportunity to mention a right of common that has not so far been
discussed. My French is not good, but my Norman French is even worse,
and I am told that the right is known as a right pour cause de
vicinage—meaning the right for sheep to stray from one common to
another. If there were ever an example of that right, it is the sheep
that stray from the great forest of Brecknock to the manor of Mawr
Penderyn, where the two registrations that I mentioned took
place. There are
such instances, and I am sure that my hon. Friends and I would support
any cross-party amendment that could persuade the Minister that obvious
registration errors should be dealt with more efficiently and
effectively than is allowed for in the Bill. On that basis, we support
the amendment and look forward to Report when we can perhaps effect a
much more permanent resolution to the
problem.
Jim
Knight: Before moving to the meat of the debate, I shall
speak to Government amendment No. 7 and not dwell unduly on accretion
and diluvion. In essence, the amendment enables the registers to be
updated to take account of natural variations in the boundaries
alongside rivers, lakes, or tidal
waters. On the more
substantive issues, amendment No. 64 is the one that has been devised
by Mr. Pumfrey. I have some sympathy with the amendment and the
individual in that case, and I will genuinely reflect on what has been
said. However, for now, I am unable to accept the amendment and I shall
endeavour to explain
why. Undoubtedly,
some common land and some greens were not registered under the 1965
Act. Often, people did not realise that there was an
opportunity—indeed, a requirement—to register, and it was
soon too late to do so, because that Act sought to create a definitive
register, and its main sanction to compel the registration of commons,
including those made by statute as in this case, was that failure to
register before the cut-off meant that the land would not be common
land. That is how this circumstance came about, and I understand that
the amendment would afford a second chance in relation to land that was
once undoubtedly common land, because it was so designated in an Act of
Parliament. On first glance that seems reasonable, but it poses a
difficulty. The 1965 Act provided that unregistered land was deemed not
to be common land, and the view of the courts is that the Act trumps
any preceding provision in another Act. So land may be designated as
common land but, in our view, it is no longer so, and it would be
difficult to provide for its registration now, when it is not what it
claims to be. The
hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) speaks with some
authority on such matters, and I need to take his thoughts seriously,
because there is an opportunity to look at matters afresh and not
necessarily accept history. My understanding, however, is that if
owners of such land wish to have it registered under the Bill, they
could create a right of common over the land in favour of another
person and secure its registration under clause 6. Alternatively they
could, as owner, apply for registration of the land as a green under
clause 15(7). So there are one or two options to right wrongs, as long
as owners wish to do so; all hope is not lost. However, in the case of
Monken Hadley common, I gather that the trustees do not believe that
their powers are sufficient for that purpose, which gives them a
particular problem. I will have to reflect on whether I wish to grasp
the elegant solution offered by the right hon. Member for Penrith and
The Border. I take great pride in taking this Bill forward, and I
suspect that his solution is a little too broad.
I have concerns about
amendments Nos. 35, 48 and 49. We accept that there were flaws in the
1965 Act. Land and rights were registered that should not have been,
and vice
versa.
Mr.
Williams: It seems to me that the real flaw in the 1965
registrations was that somebody claiming a right could put forward
their claim without any evidence, and people who disputed that
application had to prove that it was incorrect. That is why these
errors have been
included; often, people did not want to object to an application for an
entry on the
register.
Jim
Knight: I am sure that that may be the case, but the
fundamental question is that while one amendment wants us to include
land that was missed out, another wants to exclude land that was put
in, and similarly with rights.
The Committee—and
ultimately Parliament—has to take a view on whether we want to
try to get all the wrongs righted, and open the can of worms that the
right hon. Member for Penrith and The Border referred to, or whether we
want to move on 40 years after the date. I have concerns about
reopening the can of worms relating to what are registered rights and
what is registered land. We might reopen all sorts of claims, and all
sorts of valuations. We are discussing things that are bought and sold,
and the value of those rights and that land would be affected. There
would be disputes. I am sure we would create a lot of business for the
former colleagues of the hon. Member for Meirionnydd Nant Conwy, but I
am unsure whether that is the best motivation for doing
this.
Mr.
Llwyd: I am not particularly rising to that bait. Schedule
2 addresses the rectification of mistakes under the 1965 Act. In it, we
cater for wasteland of a manor and other land wrongly
registered—common land, town land and so forth. We deal with
ownership and registration per se, but we do not deal with
rectification of rights in respect of grazing and so forth. That is the
flaw. The rest of the schedule is good, but we have not dealt with this
vacuum.
Jim
Knight: I will reflect on the points made in the debate,
and, prior to Report, I would very much welcome the thoughts of Members
on whether it is possible to frame legislation in a way that
sufficiently closely defines it to ensure that we do not open a can of
worms—so that we can define clear mistakes without then
including a bunch of other mistakes. I do not think that anyone
involved in the consultation did not want us just to be able to get on
with creating a workable
system.
David
Maclean: May I press the Minister slightly on that point?
It is difficult for us as the Opposition and for minor parties to draft
technical amendments. However, if I understand the Minister correctly,
he is saying that his officials will work with us on a more narrowly
defined range of amendments to the 1965 Act. I accept that sticking
into subsection (3) a reference to any mistake in the 1965 Act would be
far too wide, but if the Minister is looking at some of the suggested
issues on grazing, the hon. Members for Brecon and Radnorshire and for
Meirionnydd Nant Conwy have made some points. If officials of all
parties would co-operate with us to create a more narrowly defined set
of amendments, we might be able to do some business. Is that the
assurance that the Minister is giving
us?
Jim
Knight: I am not making any promises. I am sharing my
problem with the Committee. I have some sympathy for Mr. Pumfrey and
with some of the points
that have been made but, as things stand, I do not see a way forward
without opening a can of worms. If hon. Members want to meet me and
officials during the next couple of weeks prior to Report to discuss
their thoughts on how it might be done, I will be happy to do so. I
will also let them know the conclusion of my thinking on the matter
before then, so that they will have time to make their own amendments
if they choose and if the circumstances require it. I could talk about
the amendments at some length, but I think that, on that basis, it is
fair to ask the hon. Member for South-East Cambridgeshire whether he is
happy to withdraw
them.
Mr.
Paice: I thank the Minister and hon. Members from all
parties who have spoken on the amendments and who are largely in
support of their thesis, if not always in support of the precise
terminology. I am grateful to the Minister for the generous invitation
at the end of his remarks. It is what we have come to expect of
him. I am sure that
there must be a way. I feel quite strongly that simply to leave all the
errors and not to reopen the issue is wrong. It must be addressed. If
it can be done in a relatively narrow way, we all have a responsibility
to try to find that way. As I said in my opening remarks, it is in the
interests of justice—justice for the common land users of
unregistered land and the rights owners who correctly registered their
rights and are disadvantaged by those who incorrectly registered them.
Justice requires us to exercise as much effort as we can to find a
solution. I am
grateful to the Minister for his offer. I look forward to those
discussions and assume that his office will be in contact with all of
us to arrange them. I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn. Amendment
made: No. 7, in clause 19, page 11, line 19, at end
insert— ‘(e) updating any
entry in the register relating to land registered as common land or as
a town or village green to take account of accretion or
diluvion.'—[Jim
Knight.] Clause
19, as amended, ordered to stand part of the
Bill. Clauses
20 to 23 ordered to stand part of the
Bill.
Clause
24Applications
etc
Jim
Knight: I beg to move amendment No. 8, in clause 24, page
14, line 14, leave out ‘particular' and insert
‘description of'.
Amendment No. 8 relates to the
power in clause 24 to make regulations regarding applications under
part 1. Subsection (7)(a) will enable regulations to make provision for
the appointment of persons from a panel to deal with particular
applications. The amendment will ensure that regulations can assign
appointed persons to deal with a class of applications rather than
individual applications. For example, the Government might wish to
provide that all applications under schedule 2 to de-register wrongly
registered common
land must be referred to a person appointed from the panel. That would
ensure that the sort of legally and factually complex issues likely to
arise in such cases would be dealt with by a suitably experienced and
qualified
person. Amendment
agreed
to. Question
proposed, That the clause, as amended, stand part of the
Bill. 5
pm
Mr.
Williams: I return to the issue that was discussed in
great detail in the other place: how the panel might be established
under the Bill. Is it a better solution for dealing with applications
of the type that we have discussed than having commons commissioners do
that or establishing a group of people who I think were termed
“inspectors” in the other place?
A point has been put to me by
the commons registrations officer in Powys. We have indicated that some
mistakes were made in respect of the 1965 Act, but a huge amount of
land was registered in Powys—probably 13 per cent. of all the
common land in England and Wales. None of the decisions were ever
challenged in any way. The hon. Member for Meirionnydd Nant Conwy might
say that the reason was the high cost that could have been borne by the
person making the challenge. Nevertheless, the decisions were accepted
by the people involved. The issue that has been put to me is that we
should have some form of tribunal or statutory decision-making process
to give people confidence that there is the necessary objectivity and
clarity in these contentious
issues. I am told
that a tribunals Bill did not complete its passage and did not become
legislation. It would have been an appropriate vehicle to set up a
proper tribunal for these purposes. The other suggestion made to me was
that we could have something along the lines of the existing
agricultural tribunals. This might seem a small issue to the Minister,
but it is about confidence for those who own commons or who have rights
on them, and for the public who seek to enjoy them and to promote
nature conservation, archaeology and all the other issues on which we
have put so much emphasis today.
I suspect that the Minister
will reject what I have said. I can see from the expression on his face
that he is conjuring up the words that will let me down gently, but
this is a matter of great concern. Although proposals were resisted by
the Minister in the other place, the Minister who is present in our
Committee has an opportunity to say that there will be a statutory form
or a statutory body to deal with this matter, rather than its being
dealt with by the seemingly ad hoc type of organisation referred to in
the Bill.
Jim
Knight: The clause gives the national authority powers to
make regulations regarding applications to amend registers of common
land, and town or village greens made under part 1. We are discussing
subsection (7) in particular. My understanding of what the hon.
Gentleman just said is that in essence the question is why we are
getting rid of the commons commissioners, who, to some extent,
currently have an
authority. They have a certain amount of competence, so he wants to know
why we want to get rid of
them. The
commissioners were established under the 1965 Act to determine disputed
initial registrations under that Act. Commissioners had to be lawyers
of seven years’ standing. I do not criticise that decision, or
lawyers or those individuals for the job they have done. We expect that
most applications under part 1 of the Bill will be straightforward and
well within the capacity of registration authorities advised by the
likes of Mrs. Griffiths. Authorities already deal with all applications
for amendment to the registers under the 1965 Act.
Where applications raise
particularly difficult matters of law or fact, we have made provision
for them to be determined by an independent panel inspector. The
amendment that we have just discussed would allow referral to
particular individuals. Unlike commissioners, panel inspectors may be
qualified because of their knowledge and experience, or technical
understanding of agricultural practice, rather than their legal skills.
That will add value over what happens at present, when the
commissioners are simply there by virtue of their legal background. On
that basis, I hope that the Committee will agree to the clause, as
amended, standing part of the Bill.
Question put and agreed
to. Clause 24,
as amended, ordered to stand part of the
Bill. Clause
25 ordered to stand part of the
Bill. Clause
26Establishment
| 
