Commons Bill [HL]

moved Amendment No. 9:"Page 3, line 12, at end insert ““, or" (c)   by being acquired over land by prescription”” The noble Lord said: This is the first of a number of amendments that I have tabled in Grand Committee. I am very grateful for the amount of work that has been done, particularly by the Open Spaces Society, in helping to put the amendments together. That applies to most of the amendments I have tabled. The Open Spaces Society has done that in association with various other groups including the Ramblers’ Association, the Friends of the Lake District and the Council for National Parks. I should, not in relation to this amendment but in general, declare an interest as a member of the Access and Conservation Group of the British Mountaineering Council. That interest relates to various amendments that I shall move which concern specifically the access angle of commons. Amendment No. 9 seeks to reintroduce the ability to create common rights, and therefore to create commons, via the right of prescription, which I believe was first set out in the Prescription Act 1832—although I may be wrong about that. It would enable people who have been able to carry out various activities on land to claim those as common rights if they have carried out those activities without challenge over a period—I believe that it is 30 years in the 1832 Act. The Explanatory Notes, which are very useful—they do not simply repeat what is written in the Bill but try to explain it—state that Clause 6,"““makes it impossible to create a right by reservation or prescription, or to create a new right in gross””—" in other words, to abolish most of the present ways in which common rights can be claimed. The notes suggest that,"““the creation of new rights over subsisting, registered common land might . . . increase problems of overgrazing””." They suggest that, so far as prescription is concerned, the reason for abolition is to create certainty and add,"““it is thought that few if any claims to amend the 1965 Act registers to record a prescriptive right of common have been made since 1970””." Perhaps the Minister now has more accurate information about that. Even so, if it is rarely used, there appears to be no reason why where common rights are being exercised and the activities are being carried out, that should not be claimable as a common in future. That is the purpose of the amendment. I, too, was interested and a little perplexed by the expression ““express grant””. The noble Lord, Lord Williams, says that he now understands it. I am not a lawyer and I do not understand it, so perhaps I may press the Minister further on the exact meaning. Does it mean that even after the transitional period, when the other rights are brought to an end, anyone who owns a piece of land can, by an express grant, declare it to be a common? Does it mean that a landowner can dedicate his land in association with a putative commoner? Does it mean that the landowner—whether it be a public body, an individual or whoever—can create a new common in association with the people who would be the commoners, by agreement, by express grant, by one of these legal deeds or whatever? That is a crucial point. If it does not mean that, what does it mean? I do not understand it. I beg to move.