Commons Bill [HL]

Clause 6(1) enables new rights of common to be created in certain circumstances. One of those circumstances is where the rights are created pursuant to any other enactment. Amendment No. 8 moved by my noble friend would provide that no new rights could be created under other enactments, while Amendment No. 10 would have the effect that a new right could be created over any land, whether registered or not, and whether attached to land or not. The purpose of Clause 6(1)(b) is to safeguard the creation of new rights where such rights arise by virtue of some other statute affecting common land. By way of example, on a compulsory purchase of common land under Part 1 of the Acquisition of Land Act 1981, the land acquired must generally be replaced with land given in exchange, and the rights discharged from the acquired land are vested in the exchange land. In such cases it is, of course, wholly in the interests of persons entitled to such rights that their rights are recreated over the exchange land, and the words in paragraph (b) preserve that effect in other legislation. The National Assembly for Wales has no general power to create enactments as referred to in Clause 6(1)(b). I appreciate the noble Lord’s concern that future legislation may seek unreasonably to impose new rights on land by taking advantage of the exception contained in paragraph (b). But that is the prerogative of Parliament. Whether or not paragraph (b) is present in the Bill, there is nothing to stop a future Parliament seeking to create new rights—although that is rather unlikely. Amendment No. 10 arises from my noble friend’s desire to know what the expression ““express grant”” means. It means that a right is expressly created by a deed or other instrument as opposed to arising from some other operation of law, for example, prescription. So an express grant is expressly created by a deed or other instrument.