Clause19
Commons Bill [Lords]
4:15 pm

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

I beg tomove amendment No. 64, in clause 19, page 11, line 14, at endinsert—

‘(i) theextent of any land registered as common land as a town or village greensave for the purpose of adding only to the Commons Register land thatimmediately prior to the entry into force of the Commons RegistrationAct 1965 was common land pursuant to a Statute still in force at thedate hereof and provided the said land but for inadvertentnon-compliance with the requirement to register the said land under theCommons Registration Act 1965 has since continued uninterruptedlysubject to the same rights thereover and has remained common land tothis day and has been treated and used assuch;'.

Anne Begg (Aberdeen South, Labour)

With this it will be convenient to discuss thefollowing: Amendment No. 35, in clause 19, page 11, line 15, leave outsub-paragraph(2)(b)(i).

AmendmentNo. 48, in clause 19, page 11, line 17, leave out subparagraph(2)(b)(ii).

Governmentamendment No.7.

Amendment No. 49,in clause 19, page 11, line 22, at endinsert—

‘(c) entriesresulting from fraudulent declarations by the owner of the rights atthe time ofregistration.'.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

I suspect that when the Minister—or, moreparticularly, his officials—saw the amendment, their heartssank, not least because I think thatthey know its provenance.The amendment relatesto a debate that has been going on forsome considerable time between the Minister’s officials and aMr. Pumfrey with regard to Monken Hadley common. Mr. Pumfrey, who isobviously a learned gentleman, has corresponded with us all at greatlength, and he has been challenging officials about the situation.  Therefore, I have tabled amendment No. 64, which has been drafted by Mr.Pumfrey. After reading it a few times, one realises that it does meansomething. It is, I am afraid, the language of law as we used tounderstand it, rather than the rather simple language in which I tendto draft my own amendments so that I can understand them.

The principle of the amendmentapplies where there is a piece of common land created by some otherstatute prior to 1965 and someone, in the phrase of the amendment, byinadvertent non-compliance forgot or omitted to register it under theCommons Registration Act 1965. There is a concern that that land wouldbe lost. The amendment would add to the facility for correction inclause 19 the opportunity to correct that sort of situation. I will notdetain the Committee by reading out what the Minister’sofficials have said to Mr. Pumfrey—no doubt the Minister will dothat himself, in so many words, in a few minutes.

There is an important pointhere, and I hope that the Minister will address it. What is the statusof a piece of land that was common by some other statute prior to 1965,but for whatever reason, was not registered? I am sure that allCommittee members would agree that it would be a great pity if thatland were lost as common land. I am looking for some explanation orreassurance from the Minister as to how that land can be kept as commonland if clause 19 is not amended in the way we propose. I look forwardto the Minister’sresponse.

AmendmentsNos. 48 and 49 are far more straightforward and simple because Idrafted them myself, and I am a simple man. They return to the issuethat I raised on Second Reading, and the Minister replied to myconcerns to some degree at that time. I make no apology for returningto these issues because they are very important, and fair play andjustice demand that we should examine them further.

I do not think that there isany real dispute about the fact that after 1965, a large number ofrights were registered that had no true validity in historical terms.They were considerably in excess of rights that people had previouslyexercised under the old levancy and couchancy rules, which weredesigned to relate a person’s common rights to the amount ofstock they could accommodate on their own land during the winterperiod. There were absurd situations where people who could accommodate10 or 20 head of stock during the winter on their own land wereregistering rights for several times that figure during the summer.That aspect is part of the picture.

There are also examples, and Ireferred to one from my constituency—needless to say, my localpress have tried to investigate this, but I have not given them anyfurther knowledge—concerning an allegation that someone hadregistered rights when he had no rights on the common prior to thatdebate at all. They were registered, and there have been no grounds forcorrection. Amendment No. 48 would simply delete from clause 19 thesentence that would prevent a correction being made if it had anyimpact on the right of common.

Amendment No. 49, on which Iam happy to take guidance if the drafting of the precise terminology isincorrect, creates the opportunity in what is intentionally a fairlynarrow situation for correction where entries have been made thatresulted from fraud.  The Minister may ask how we could prove fraud and it would be for othersto come forward with the evidence to prove that someone who had claimedthe right had no justification for doing so. By using the word“fraudulent” in the amendment I have tried to narrow downsituations when countless people could say that this or that was notquite right. I understand the Government’s desire not to reopenthe registration issue because it is a can of worms and my right hon.Friend the Member for Penrith and The Border (David Maclean) told usthis morning what his officials said to him when he was the Ministerresponsible for such matters. It is not something to be entered intolightly. Nevertheless, there is a fundamental problem and fair playrequires that it should be addressed. The Government should not simplyshrug their shoulders and pretend that it is too difficult to deal withbecause that would do no one anyjustice.

In his replyto my Second Reading comments the Minister referred to stakeholders andthe National Farmers Union. It is true that the NFU is not in favour ofreopening the register, probably because a number of its members mightbe affected, but it is not true that it would apply to allstakeholders. The Country Land and Business Association, which I quotedearlier, is in favour and said so in its submission to the Committee.It is not a universal view among stakeholders that the matter shouldnot bereopened.

There is acase. I do not have the optimism of the hon. Member for Brecon andRadnorshire that a few charming words will convert the Ministerovernight, but then I am not as gullible as most Liberal Democrats.Nevertheless, I have made the point and I hope that the Ministerunderstands that there are some serious injustices, with ongoingimplications for management. For example, if all but one of the rightsholders of a common accurately registered the rights to which they wereentitled, but one massively over-registered, that could result inover-grazing, which the Bill is, in part, designed to address. If thereis no power to correct that registration, the consequences ofover-grazing and the management decisions that would have to be made,subject to later provisions in the Bill, would affect all rightsholders. They would all suffer because one person massivelyover-registered. That serious injustice should be addressed and that iswhat is behind theamendments.

Paddy Tipping (PPS (Rt Hon Jack Straw, Secretary of State), Foreign & Commonwealth Office; Sherwood, Labour)

I want to build on the point that the hon.Gentleman made that the registration process was flawed and that therewas injustice. I have no doubt about that. I would have liked to see abolder approach but clause 19 allows only minor corrections. Largeparcels of land throughout the country should have been registered buthave been left out. That is an injustice initself.

I want todraw the attention of the Minister and his officials—I know thatthey have been to Cumbria frequently to survey the scenethere—to an example that was provided to me by that excellentorganisation, the Friends of the Lake District, which worked extremelyhard in the other place to modify the Bill and has been involved in theissue of commonholders associations and how they are developed. Theydrew my attention to a piece of land at Thirlmere, some of which hasbeen registered as common land. Under the  registration process the open fell was registered as common land, butsome of the common land, which was part of the landscape adjacent toit, had been planted and forested, so during the registration processit was not included on the register. There are strong feelings aboutthat. Forested land does not necessarily always remain forested. I ampleased with some of the Forestry Commission’s work to removewoodland and return landscape to its nativehabitat.

As it stands,clause 19(2)(b)(i) does not allow the amount of the land to beincreased at all. I followthe hon. Member for South-EastCambridgeshire(Mr. Paice) on this point. My amendment issimple;it would strike out that possibility and allow theregistration authority to increase the amount of common land. I knowthat this is a radical amendment to clause 19, which just allows forminor correction. Sometimes, amendments are called probing amendments,but I want to use mine as a prodding amendment to remind the Ministerand the people who follow our debate that injustices have been done inthe past and that land that should have been registered—it hadall the attributes for registration—should have beenincluded.

I wouldlike to see a greater proportion of common land and common rightsacross the country. The Bill is currently designed to minimise that.Rather than probe the Minister, I want to prod him and remind him ofthe heritage and tradition in thisrespect.

David Maclean (Penrith and The Border, Conservative)

I support theprinciple of the amendment moved bymy hon. Friend the Memberfor South-East Cambridgeshire. I have not had the privilege of massivecorrespondence from William Pumfrey, MA Cantab., so I do not wish tosupport the exact wording of his amendment. However, I hope that theMinister considers whether on Report we might get an all-partyamendment to clause 19(3). It refers to two reasons why the registermay be corrected when itsays:

“Referencesin this section to a mistakeinclude—

(a) amistaken omission;and

(b) un unclear orambiguousdescription.”

I hopethat the Minister will say that he will add corrections to the 1965Act, because there are a large number of small but important injusticesarising from it. We cannot have the explanation that the 1965 Act wasdefinitive, is set in stone and can never be changedagain.

The Ministerhas the privilege of being on an extraordinary Committee. When I was aHome Office Minister and passed many wonderful bits of legislation, theoldest Act that I ever managed to amend was something relating to the18th century. If colleagues turn to pages 44 and 45 of theBill—sexy schedule 6, which deals with repeals andamendments—they will see at the bottom of page 45 that theMinister is repealing the whole of the Commons Act 1285. I suspect thatthat sets a ministerial precedent in Committee: no one has ever amendedsuch an ancient Act. If the 1285 Act, which  was set in concrete or granite for eight centuries, can be repealed bythe Minister, I am sure that a few tweaks to the 1965 Act may beappropriate.

Lookingat the other Acts that are being amended—including the repeal ofsection 21 of the Metropolitan Commons Act 1866 and section 2 of theGifts for Churches Act 1811—I do not think that the Ministercould say, “I’m sorry, we can’t touch the 1965Act. It was the definitive Act, the bible of commonslegislation.” We know that mistakes have been made.

The hon. Member for Sherwoodis right to quote some examples in Cumbria. There are numerous otherexamples. It is not a mega, mega injustice; it is not that all the 1965Act is invalidated, but mistakes were made in all innocence andhonesty. We should have the ability now, after due process, to correctthem, not by arbitrary changing of the register but by going throughthe various processes in the Act and correcting registration mistakesmade in 1965.

I donot believe that the Minister can say that clause 19(3) deals with thatissue. I hope that he will accept an amendment on Report thatspecifically mentions the 1965 Act in much simpler language than in theesteemed William Pumfrey’s amendment, and then we can deal withinjustices done in1965.

Elfyn Llwyd (Parliamentary Leader; Meirionnydd Nant Conwy, Plaid Cymru)

I agreeentirely with what has just been said. Years ago, I used to practisethe area of law under the 1965 Act, and I came across mistakes time andagain—not of my own doing, I hasten to say. I would often findthat rights had been registered throughout southern Gwynedd by a wellheeled landowner from 100 miles away. To correct those mistakes, thosewho were suffering as a direct result would have to go to the HighCourt. That was the greatest mistake in thatAct.

We have heard inprevious discussions that the 1965 Act was flawed. By and large, it wasnot a bad Act. It was a bit too complicated in parts, but the bigmistake was that it was left to those who were suffering to try tocorrect entries that were patently wrong for whatever reason, whetherby mistake or fraud. They would go to the registration authority, but,ultimately, the answer would be, “Take it to the HighCourt.” Tenant farmers from north Wales could not even considerthat, despite the rights being an integral part of their farmingoperation.

Imentioned in last week’s debate that I hoped that the Bill wouldallow for those corrections to be made without reference to litigation,as has just been suggested by the right hon. Gentleman. I did not get afull response at that stage—nor, to be fair, was I expectingone—but it will be a grave omission in this Bill if we do not atleast open the door to resolving the most blatant of the mistakesand/or wrong registrations of the past. As he said, we are not talkingabout root-and-branch repeal of the 1965 Act, but merely of an avenueto correct what needs to becorrected.

I put thisas strongly as I can. It is clear that these things must be corrected.There are numerous examples in my own vicinity of people who aresuffering as a direct result of wrong registrations and who feel thatthe value of their registration rights has been undermined. Worse stillare those cases that,  strictly speaking, involve not an absentee landlord but someone from afarm who might have registered 10 times as much land as he was entitledto, and whose over-grazing is directly causing difficulties in the mostpersonal way to those small tenant farmers who rely on that grazingland in the spring and summer. In terms of the environment, we are allaffected, because even if the tenant farmers send up fewer sheep thanthey should, they find that most of the pasture has been taken over bythe stock of the wrongly registered dominant tenement. Therefore, interms of the environment and justice and to get the Bill right, I urgethe Minister to accept the course that has been suggested to him. Icertainly would join on an all-party basis to correct this omission inthe Bill.

I dare saythat none of us were in Parliament when the 1965 Act was passed. I donot know how the omissions got into that Act, but, here and now, we arecreating law and are capable of correcting the omissions. We should dothat, as we have to consider all eventualities to make good law. I amnot saying for one moment that there will be an awful flood ofcorrections, but there will be several of them. There is the Cumbrianexperience, and I have spoken briefly about north Wales, mid-Wales andother places. Undoubtedly, corrections will have to be made, but theregistration authority will be able to look carefully at each and everyone, and I hope that eventually the situation will be dulycorrected.

Subsection (2)(b)(i) says ineffect that the commons registration authority may not amend itsregister if it will in any way affect

“the extent of any landregistered as common land or as a town or villagegreen”.

By that, I readthat the only way in which an amendment can be made is, again, withreference to the High Court. Again, that is a mistake. If the matter islive and the extent of any land registered as common land or villagegreen is genuinely an issue, we should consider a means of dealing withit, rather than rely on the High Court every time.

As a lawyer, I know thatmaking an application to the High Court does not come cheap. I hopethat I shall not be struck off for saying that but, on a serious point,it is no use saying to people, “You can always take thatavenue.” It is available to only a few. If we are legislatingproperly, we must legislate for everyone and all eventualities. If myreading is correct, must reference be made to the High Court? I thinkthat I am right, but I may be wrong. No doubt, the Minister will put meright if necessary.

Philip Dunne (Ludlow, Conservative)

I support the tenor of theamendments. I have a couple of observations that I do not think otherhon. Members have made. On Second Reading, I referred to the registrarin Shropshire who told me that he thinks there is as much unregisteredas registered common land. The prospect of mistakes remains, and aflexible system that, without the necessity of approaching the HighCourt, allows errors and omissions to be corrected makes eminentsense.

I apologisefor referring to my previous remarks, but the issue was brought home tome by the consequences of the mapping exercise that the Department is  undertaking through the Rural Payments Agency. Most farms have been toldthat the maps that they have supplied are incorrect. It is highlylikely that the maps covering common lands will not conform to theDepartment’s expectations, and as a result of more detaileddigitised mapping, a number of errors are likely to arise in existingregistered common land. From a practical perspective, it is importantthat there is an opportunity to make corrections to the registeredcommon land boundaries.

My final point, which is aboutfraudulent rights, also picks up on one of the consequences of thesingle farm payment scheme that we in England are obliged to undertake.Wales is relieved of it. All parties with a claim to a piece of landmust agree about each other’s claims before the Rural PaymentsAgency will sanction payment—when it eventually gets round tomaking payments. As a result of the multiplicity of claims to commonland, if somebody has fraudulently claimed a right or they believe thatthey have a right, they can frustrate payment of claims to those whohave entitlements not only to common land, but to their entire holding.They can potentially frustrate the payment of a large number of singlefarm payments. A flexible system that allows for corrections to bedealt with expeditiously isimportant.

Roger Williams (Shadow Minister (Rural Affairs), Environment, Food & Rural Affairs; Brecon and Radnorshire, Liberal Democrat)

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 (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

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.

Roger Williams (Shadow Minister (Rural Affairs), Environment, Food & Rural Affairs; Brecon and Radnorshire, Liberal Democrat)

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 (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

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.

Elfyn Llwyd (Parliamentary Leader; Meirionnydd Nant Conwy, Plaid Cymru)

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 (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

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 (Penrith and The Border, Conservative)

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 (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

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.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

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.