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Lord Renton: I am grateful to the noble Lord for giving way. This is a rather important point. I agree with what he says about the Law of Property Act, but the application of that Act has to a considerable extent been overtaken by the Commons Registration Act 1965. So we do not have to look quite so far back perhaps as the noble Lord thinks.

Lord Williams of Elvel: I am most grateful to the noble Lord who is an expert in the matter. However, if he will kindly hear me out, perhaps I may answer his point. It is not easy to know whether the land in question was subject to rights at that point. This carries through to the 1965 Act and to today. Anyway, as the noble Lord, Lord Renton, quite rightly points out, since we have common land registers, if all the common land were on the registers I would agree that that point is of a minor nature. But it is not.

The schedule that I propose is merely to clarify and simplify the matter. The schedule should apply to all commons on the Common Land Register and the agency should be the agency that keeps the register. That is the minimum that is necessary at the moment. I agree that this Bill may not be the right place and I would have liked the Government to produce legislation of their own. If that is impossible, we have to try to ensure that the minimum is achieved. It is for that reason that I put forward this schedule for discussion. We can have a debate, the Government can respond and, in responding, perhaps the noble Viscount can tell us why we have not had legislation to fulfil the Conservative manifesto of 1987. I beg to move.

Lord Renton: The noble Lord, Lord Williams of Elvel, has done a valuable service by moving this amendment containing a new schedule which is intended to fill in what he regards as gaps in our law relating to common land and the administration of it. Undoubtedly there have been gaps. I must disclose, in relation to a case that went to the High Court—it is no longer there so it is not sub judice and I can therefore

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mention it—that we were very anxious about the way in which we thought that lands were common lands at Huntingdon. Until the High Court made a new scheme it would seem that they were not common lands in the full sense; but they are now. It is very important indeed that we should get the whole of this law right with regard to common land.

I would have thought that the amendment should easily fit into the framework of this Bill. It is perhaps a bit of an adumbration when it comes to fitting it in to the protection of the environment as a whole, but it relates to a part of the environment, and a part that we need to protect. Therefore, I should have thought that it is relevant for us to consider the matter.

I have to confess that I find the amendment of the noble Lord a very technical one. Although he was kind enough to imply that I know something about this branch of the law, I would not claim to understand all the detailed implications that arise from his amendment. My noble friend Lord Ullswater has no doubt taken advice on this and I shall be very interested to hear what he has to say.

Quite clearly, we do not want land which has been registered as common land to be easily removed from the register. But my experience has been that there has been difficulty in getting land which ought to be registered put on the register. That seems to me to be an even higher priority.

Lords Williams of Elvel: I am most grateful to the noble Lord for giving way. I am sure that he will recall what I said: the register set up under the 1965 Act closed in 1972.

Lord Renton: Yes, that is so—and there were very considerable difficulties during the time that it was in operation.

To summarise, this is a matter which should be considered in relation to the Bill. This schedule, technical though it is, is something that we should consider and on which we should receive the advice of my noble friend Lord Ullswater. I do not commit myself, until I have heard my noble friend, to saying that I support the amendment. But I am in broad sympathy with its aims.

Baroness David: I should like to support my noble friend in this amendment. I am very glad indeed to hear what the noble Lord, Lord Renton, said, because I think it has been a rather sad tale about our commons. There is no doubt that a lot were not registered which should have been registered and that a great many of those that have been registered have suffered, and are being reduced in number and indeed in the quality of what they offer. The tale goes back a long way. It was in 1958 that the Royal Commission on Common Land published its report and made a number of recommendations to safeguard common land and improve access to it. In fact, that did lead up to the passing of the Commons Registration Act 1965. Since then, successive governments have expressed sympathy with the recommendations of the Royal Commission, but very little has happened. We do know of the losses that are happening.

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The Government have not kept their word. We had a commitment to legislation in the 1987 manifesto, and repeated questions have been asked since then. My noble friend Lady Nicol, who is very sorry that she cannot be here tonight, has, I think you might say, pestered the Government over and over again with questions about when they are going to do something about common land. In April last year she asked a Question and was told by the noble Earl, Lord Arran:


    "I can confirm that it still does remain our policy to safeguard the status of common land and to strengthen the ways in which it is protected and used".—[Official Report, 14/4/94; col. 1618.]

Our contention is that they are not being satisfactorily protected and the Government really ought to be committed to do something. My noble friend's amendment goes some way towards adding some protection. I hope that it will be very seriously considered. I know that he said it is a probing amendment and I hope that we shall get a sympathetic response. The Government owes that to the Committee.

I do not know whether the noble Lord, Lord Renton, was referring to Spring Common in Huntingdon when he was speaking, but I think he was. I understand that it is, in fact, still being damaged and, of course, we all regret that, so I shall hope for a favourable response from the Minister.

Viscount Ullswater: The amendments made by this schedule to the law relating to common land and town or village greens seek to provide a partial answer to the problems arising from common land. They do not entirely attain even that objective, and in some respects would do more harm than good.

I realise that the noble Lord, Lord Williams, put them forward by way of probing amendments; but he did say that his amendments address the most urgent threats. I have to say to him that I believe that they fail to address the principal problems associated with common land—those of removing from registers land which has been registered incorrectly and providing improved arrangements for the management of commons. I have to say, therefore, that this partial approach is not acceptable.

There is a wide range of interests concerned with this subject, particularly those who earn their living from common land. I notice that the noble Lord indicated his close connection with commons. His experience obviously gives him a certain amount of expertise in the matter. Experience with the Common Land Forum, which reported in 1986, and the consequent discussions have shown just how difficult it is to balance the interests involved, and how difficult the process of changing the arrangements for registration and management of common land would be.

My noble friend Lord Strathclyde advised the House on 27th July 1993 that the Government could see no way in which comprehensive legislation on the basis of the Common Land Forum report could be taken forward. He indicated that the priority questions which the Government wish to address are those of registration and management. Since that time a lot of careful thought and informal consultations with a wide range of

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interested bodies have been applied to these questions. I hope to be able to report the result of those consultations in the near future. Therefore, I do not think that it would be right to think that the Government have been entirely sitting on their hands. There are difficult problems and the way forward has not been easy to find.

5 p.m.

Baroness David: Perhaps I may interrupt the noble Viscount. Is it not a fact that at one point there was a draft Bill in his department?

Viscount Ullswater: I am not aware of that but I shall find out and write to the noble Baroness.

As a general comment, I understand the noble Lord's desire, in the context of the Bill, to involve the environment agency in matters relating to common land. But the environment agency is to be formed from Her Majesty's Inspectorate of Pollution and the National Rivers Authority. Although both organisations may operate on common land in the course of their current duties, they have no history of involvement with the subject nor expertise in the sometimes arcane legislation which governs common land.

Present arrangements place the responsibility for the registration of common land with the county councils and the London borough councils. That ensures that the registers are available for inspection in reasonably accessible locations for all who may wish to consult them. The records and the experienced staff of the registration authorities together are an invaluable resource at the core of that tier of local government.

At present, also, the power to apply to the county court in the case of any contravention of Section 194 of the Law of Property Act 1925 rests with the county and district councils and with persons interested in the land in question. The amendments made by the proposed schedule would give the sole power to the environment agency. With the best will in the world, I cannot see the agency having the resources or the local knowledge to tackle unauthorised incursions onto common land, let alone to become involved in disputes concerning unauthorised fencing or other work. Nor can I understand the logic of preventing people interested in the common from applying to the court to restrain transgressors.

In fact, I find it rather unusual to hear from the Benches opposite the suggestion that power be taken away from the commoners and the local authorities. The usual stance of the party opposite is to make certain that local authorities retain power. Giving it to the environment agency would remove the power from both the commoners and the local authority.


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