Commons Bill [HL]

Dare I admit that I sometimes have difficulty in defending everything that the Government do, although I am a member of it? So I am certainly not going to go back 40 years and try to defend every single way in which that Bill was no doubt brilliantly moved and passed through Parliament. One of the reasons we are here now is because the 1965 Act did not turn out to be as effective a piece of legislation as everyone had hoped following the Royal Commission in the late 1950s. I shall do my best, if I may, with the questions that have been raised. Clause 12 requires the surrender of any right of common to be effected in a prescribed form, and delays the effect of the surrender until the right has been struck out of the commons registers in accordance with regulations. That approach is consistent with Part 1, where we provide that changes to rights of common are effective in law only once they are registered according to a prescribed procedure. That will ensure that the registers are kept up to date and, in effect, conclusive of the matters registered. However, in common law, as the noble Baroness said, a right of common can cease to exist not only on a surrender, such as is catered for by subsections (1) and (2), but in various other ways. For example, rights may be lost through abandonment, or where the holding to which rights are attached is acquired by the owner of the common. The noble Earl, Lord Peel, mentioned that earlier. It is our view that these common law mechanisms are either redundant or unhelpful where the existence of rights of common is recorded in statutory registers. Indeed, their continuing existence would detract from the validity of the register, because no one looking at a registered right would know whether that right had ceased to exist since registration through the operation of one of these ancient principles. For example, one might wonder whether, if a right had not been exercised for many years, it had been lost by abandonment. Instead, the powers set out in Clause 12 will provide a continuing mechanism to extinguish rights of common where the parties to that right desire it. So subsection (3) provides that any other common law mechanism by which registered rights of common may cease to exist is abolished. We commend that approach in order to secure much greater certainty about the contents of the registers. Formerly, the effect of the common law rule was that, if the rights ceased to exist, so did the status of the land as common land. That will no longer be the case. So if the right is no longer exercisable, there is no real cause for the owner of the common to seek its deletion from the register, because nothing will be gained by it. I turn to the questions about the 1965 Act. Rights such as turbary—to dig peat to burn in the hearth—can be, and were, registered under the 1965 Act, but they were not specified. They were just a kind of right of common. I hope that answer is satisfactory to the noble Baroness and explains what we are doing in Clause 12.