Commons Bill [HL]

Amendments Nos. 7 and 14 would give the commons commissioners a new lease of life, effectively, and confer on them a function in relation to the arbitration of disputes about rights of common. Amendment No. 121 to Clause 23(6) enables the Secretary of State and the National Assembly for Wales to make regulations to enable the appointment of a person to discharge any or all of the functions of a commons registration authority or the national authority in determining an application under Part 1. The amendment spoken to by the noble Baroness would remove that power. I shall deal with Amendments Nos. 7 and 14 first. The commons commissioners were first established under the Commons Registration Act 1965, as the noble Lord told us, to determine the first wave of disputed provisional registrations under that Act and to inquire into the ownership of unclaimed common land and town and village greens. As he said, Part 1 of Schedule 5 abolishes the commissioners by repealing the 1965 Act. Instead, the Bill provides for the function of determining applications to be conferred on the commons registration authority or, in the case of applications for exchange under Clauses 15 and 16, in the Secretary of State and National Assembly. However, under Clause 23, regulations may be made enabling the Secretary of State or the National Assembly to appoint a person to carry out any or all of the functions of determining an application in place of an authority under Part 1 of the Bill. Such appointments are likely to be made where applications introduce matters of some considerable complexity of law, and that those may be matters in which the registration authority is unlikely to have great experience. There will also be applications in which the authority itself has an interest in the outcome and may be an interested party—for example, if it is the owner of the land affected by an application to register a new green. We are considering whether a panel of persons with experience and, in appropriate cases, legal qualifications should be established to provide a pool of inspectors from which appointments can be made. It will certainly be important that appointed persons have, and are seen to have, suitable skills to perform what will often be legally difficult or intellectually demanding work. The amendments raise the question of why we do not simply retain the commissioners for the purpose of appointments under Clause 23. Our view is that the work of the commissioners is now nearly complete—remarkably, even now, there remain a few cases outstanding—and it is time to introduce some fresh thinking into the way in which applications are dealt with in relation to the registers. Commissioners were required to be lawyers—barristers or solicitors—of seven years’ standing, and were appointed for life. We have in mind a more flexible approach. For example, it may be perfectly proper to appoint a person without legal qualifications to determine a matter which essentially revolves around matters of fact rather than law, just as many rights of way cases, for example, are determined by independent inspectors who are not legally qualified. Equally, we may wish to retain the services of highly qualified lawyers to determine cases involving difficult questions of law, but it would be absurd to require an experienced and costly lawyer to determine every case. We think it unnecessary to retain the commons commissioners as a dedicated tribunal as before, but we also expect to appoint persons of similar experience to decide some cases which arise under Part 1 of the Bill. Even so, we believe that a less inflexible mechanism is required for this purpose and that the noble Lord’s amendment is therefore not needed. Perhaps I may say a few additional words about Amendment No. 121. In general, applications under Part 1 are made to the commons registration authority, except, as I said, applications for deregistration and exchange of land under Clause 15, which must be made to the Secretary of State or the National Assembly of Wales. In many cases, it will be entirely proper that the application is considered and determined by that registration authority; for example, we would expect it to determine applications to register the transfer of a right held in gross or to register the surrender of a right of common. However, as I have said, we recognise that this will not always be appropriate, so Clause 23(6) confers regulatory powers to enable some or all of the functions of a registration authority to be undertaken by an independent person appointed for that purpose. This does not mean that, in any such case, the matter will be removed entirely from the jurisdiction of the authority. For example, it may be that a person will be appointed to inquire into the matter and to report back to the authority with his findings. The authority will then determine the matter having regard to his advice. By way of analogy, local authorities have similar powers under Section 101 of the Local Government Act 1972 to appoint a committee, sub-committee or officer of the authority to determine any matter or to arrange for another authority to determine the matter on its behalf. Regulations under subsection (6) will also enable the Secretary of State and the National Assembly to undertake their functions in relation to a determination of applications for deregistration and exchange under Clause 15. I hope that I have gone some way toward convincing the noble Baroness that her Amendment No. 121 should not be moved.