Commons Bill [HL]

moved Amendment No. 6:"Page 5, line 16, at end insert—" ““(d)   any other person if— (i)   the rights of common are registered in the register of common land or town or village greens as attached to land owned by the transferee, (ii)   the rights of common attached to the land owned by the transferee are exercisable over the same land as the transferred rights, and (iii)   the transferee makes an application under section 10(2) to attach the transfered rights to the land owned by the transferee; (e)   any other person if— (i)   part of the land to which rights of common registered in a register of common land or town or village greens are attached is transferred to another person, (ii)   the transfer is on terms that the rights of common attached to the transferred land is severed from the transferred land and attached to the retained land, and (iii)   the transferor makes an application under section 10(2) to attach the severed rights to the retained land. (3A)   The provisions of paragraphs (d) and (e) of subsection (3) shall come into force in accordance with regulations which may be framed by reference to particular land or descriptions of land.”” The noble Lord said: My Lords, prefacing what will I hope be my brief remarks this afternoon, I reiterate the welcome that I gave the Bill at Second Reading. As a number of noble Lords have said, it is overdue, coming 40 years after the Commons Registration Act 1965, which in turn was probably a further 40 years overdue, after the Law of Property Act 1925. I thank the Government for the non-partisan and pragmatic approach that they have taken to how they have dealt with matters of concern to various Members of your Lordships’ House during the passage of the Bill. In particular, I commend the sound policy that in the case of commons ““one size fits all”” is not the right approach. That there is considerable variety in the commons of England and Wales should come as no surprise. After all, they have very diverse histories and are very far apart from each other. I came down from Cumbria this morning, and when I am here, I am closer to Paris than to my home—so we are not surprised that things are different there. The commons themselves have different roles in their agricultural communities, and how they have been managed over the years varies very considerably owing to the variations in the manorial system—because historically much of the administration was carried out in the manorial courts. In the case of severance, with which Amendment No. 6 deals, that plurality is already recognised in statute. As for Dartmoor, permanent severance of common rights is forbidden—and no one has ever suggested that this legislation should change the provisions that apply there. On the other hand, the Greenham and Cookham Commons Act 2002, which came on to the statute book only three years ago, permits it subject to certain tight constraints. We have here a precedent for a plural approach to the question whether permanent severance of rights of common should be allowed. What I propose as suitable under some circumstances, but not necessarily all, is that permanent severance of rights of common from one piece of land should be permitted, provided that they are subsequently attached to another piece of land that itself has appurtenant to it rights on the same common. In proposing that, I am fully aware of the need to balance all the relevant and important legal interests that exist in such circumstances—and we must remember the rights and concerns of all the parties that may be affected. But it is worth recalling that many common rights that will be affected by the general ban on severance, are in fact quantified appurtenant rights, which under the common law have in many cases for a century been capable of being severed. I understand that under the Commons Act 1876, large numbers of common rights sans nombre, subject to the provisions of statute, were converted into quantified rights—and under the common law it follows, as was made quite clear in Bettison v Langton, they could be severed. I am not for a minute suggesting that we should move back to a situation in which common rights can be simply indiscriminately severed from land. What I propose—and what the amendment intends—is to provide a framework in which it would be possible for the kind of thing that I described to take place if it was deemed appropriate to do so. I stress the words,"““if it was deemed appropriate to do so””," because that is the key to the argument that I am advancing. As I have already said, what is right in one place is not necessarily right elsewhere. We have already seen this principle accepted in the Dartmoor statute and the Greenham and Cookham Act. This general approach should cover England and Wales as a whole. The way commons operate varies considerably from place to place. I recall, earlier in the debate in your Lordships’ House, the noble Lord, Lord Livsey, telling us that, when he first left Wales to work in the Pennines, he found that the arrangements for dealing with commons were somewhat unfamiliar to him, and were in fact materially different from what he had grown up with in his own country. The underlying point behind my amendment is simple, and one the Minister made in a remark earlier this afternoon; and that is, the Bill we are discussing is likely to set the framework for the administration of common land in Britain for the next 40 years. Not many of us will be here in 40 years’ time, unlike my noble friend Lord Jopling, who remembers dealing with the 1965 Act. If I am right, and it would be desirable for severance to take place along the lines I have described—I am not necessarily asking your Lordships to agree with me, merely to accept there is a possibility that I might be right—I understand it would not be possible to do much about it under the provisions of the Bill as now drafted. That is precisely the problem that has arisen out of the 1965 Act, which ended up posing a series of questions—not necessarily questions anticipated at the time it was debated—that it has not subsequently been possible to address until now. If I am right, to have the kind of provisions that I am advancing on the statue book would be a good thing. If I am not—and my near family can confirm that happens from time to time—the Government simply need not bring in any regulations. Furthermore, given the plurality that exists across commons across England Wales, it may be that in some places the kind of ideas I am advocating are suitable, and in others they may not be. My amendment enables variation across the face of the country. The precedent for this in the Bill is the provisions that relate to the leasing of common rights. Those provisions contain an enormous degree of flexibility—quite rightly, I believe, because we do not know precisely the requirements of commons in the years to come. It is right that the government of the day should have wide flexibility in this regard in order to be able to tailor the detail of what is decided in future by regulations to meet the precise requirements of the day. This proposal meets the criteria of good government. I have talked this through in general terms with one of the Clerks, and I am advised it should not pose any problems with the Delegated Powers Scrutiny Committee. I do not believe that the Government can lose by accepting my ideas. I beg to move.