Commons Bill [HL]

My Lords, before I respond to the amendment of the noble Lord, Lord Livsey, I point out that the Government’s view is that the Bill has already been much improved in Committee and in the short while between Committee and Report from how it was when it began in your Lordships’ House. I am extremely grateful to noble Lords from all side of your Lordships’ House for their part in improving the Bill. I hope they acknowledge, in turn, that the Government have made some concessions on the Bill, which are clear from government amendments before the House today. Noble Lords should, I hope, feel that we have done what we said we would at Second Reading; that is, to listen to what noble Lords say—we are still in that listening process. After the experience of 40 years ago, it is more important to get the Bill right than to insist on our position in every situation, come what may. Amendment No. 1 brings us back to some familiar friends, the commons commissioners. Under the Commons Registration Act 1965, the amendment would vest the functions of the commissioners in a new body of adjudicators to be known as the commons inspectors. If I may revisit how we see applications under Part 1 of the Bill, which envisages the commons registration authority having the lead role in dealing with applications for amendment of the register. That is the same approach as that under the 1965 Act, which required registration authorities to deal with all applications for provisional registration. Regulations made under Clause 24 are likely to provide for such applications to be dealt with in one of several ways. We envisage that straightforward applications—for example, to register the variation of a right of common—will be determined by the authority. Similarly, we would expect the authority to deal with most applications for correction of the register. We envisage, however, that some applications will raise particularly difficult questions; either of fact or of law—or, perhaps, of both. That is particularly likely in the case of applications under Schedule 1 for deregistration of wrongly registered land or registration of waste land of the manor, which may require the tribunal to examine historical evidence, take evidence from witnesses and interpret matters of common law. The noble Lord, Lord Livsey, mentioned that schedule. Other applications may pose difficulties for the registration authority through conflict of interest. For example, an application under Clause 19 for correcting an error in the register may relate to land belonging to the authority itself. In these cases, regulations enable us to provide for the appointment of an independent person to do one of two things: to inquire impartially into the matter and to report back to the authority, which would make the final decision having regard to that report; or to inquire into the matter, and for the appointed person herself to determine the matter on the evidence before her. This is not a question of big government taking the matter out of local authorities’ hands. It is not necessary that regulations provide for a prescriptive approach to these things. For example, they may provide for an authority to refer an application for the registration of a green to an independent person on its own initiative. Some local authorities have told us that such applications are very controversial, raise complex questions of both fact and law and are not matters that can satisfactorily be dealt with by council members. We envisage that regulations would enable the decision to be taken instead by the appointed person at their discretion. Similarly, if the authority was aware of a conflict of interest, it would be expected to refer the matter elsewhere for decision—that would be proper. We are already committed to consulting on the form of such regulations, and that will be the opportunity for registration authorities to talk to us about how these things should be handled. Noble Lords may remember that my honourable friend, Jim Knight MP, the Minister for Rural Affairs, in September announced our plans for assisting with financial and practical support for the establishment of an association of commons registration officers. We expect a strong, focal role in consultation for the proposed association. It is a little early for me to say exactly what the panel of independent persons will look like. I think it very likely that, as the noble Lord, Lord Livsey, envisages in Amendment No. 1, some panel members will have legal qualifications and others will not. Sometimes experience and awareness in matters of common land can count for as much as legal qualifications. It is clear to us that we will need to establish a panel, so the noble Lord is pushing at an open door. We cannot hope to have applications dealt with on an ad hoc basis by inspectors who come and go, but we do not need special powers to deal with this. We have a panel of inspectors determining public path orders, but they manage very well without an official title. As this House will know, a panel of inspectors deals with access appeals under Part 1 of CROW, but the powers in CROW are not dissimilar to those available to us under Clause 24—there is no ““access inspectorate””. We expect there to be a role for our panel of independent persons in taking forward work on other parts of the Bill. We are already committed to holding an inquiry into proposals for commons associations under Part 2 where a proposal is controversial or contested, and some applications for consent under Clause 38 will be referred to a hearing or inquiry. I know that there is great respect for the work of the commons commissioners—they are acknowledged to be fair, well informed and independent. We will seek to emulate those qualities in those who fulfil a similar role. Noble Lords will know that this Bill repeals the 1965 Act, and I am on familiar ground when I say that it is time to move on. Perhaps that has been said too much, but I emphasise that this Bill is about setting the scene for the next 40 years. The implementation of the Bill will be an exciting time for those with an interest in our common land, and there will be opportunities to create a panel of independent persons which meets the needs of the present and future rather than the past. That is absolutely in line with what the noble Lord, Lord Livsey, has asked for. We do not feel that we have to put it in the Bill in this way. I ask the noble Lord to have confidence in our plans and so to withdraw his amendment.