Commons Bill [HL]

I shall seek to answer the noble Lord, but I am conscious that this area of inter-relationship and responsibility is one of the most complex. As my noble friend Lord Williams of Elvel said, there is an overlap here with the clause stand part debate that will follow. I shall seek to answer some of the specific points and, when we reach the debate on clause stand part, I promise not to repeat the part of the answer that relates to that. English law does not look kindly on the confiscation of private property rights. The Committee will be aware that the Human Rights Act 1998 confers specific protection for such rights. Just because no one has come forward to claim the title to a common since the 1965 Act was passed or, indeed, since long before then, we cannot assume that there is no known owner. Under the 1965 Act, it was not obligatory to register ownership of title to land, and the Act expressed no particular consequences for a failure to do so. So we start from the position that the true owners of unclaimed common land have never been effectively challenged to come forward. Limitation law enables an owner to challenge the usurpation of his title—for example, by adverse possession—for a substantial period after the challenge begins. Usually that is 12 years but, in the case of minors, those incapable of managing their affairs, the Crown and certain institutions, it is 30 years. We believe that that means that any measures to enable unclaimed common land to be vested in a local authority must respect the possibility of a challenge by the true owner of the land at any point up to 30 years after the vesting. That poses problems for the effectiveness of such measures. What would be the impact on a local authority managing vested land when its responsibilities could be taken away at any time? How willing would it be to invest in the land if there were no guarantee of permanency? That relates to the point raised by the noble Lord, Lord Greaves, but from a slightly different angle. What would happen to receipts—for example, from granting easements for vehicular access—if the true owner turned up later? Would the local authority be liable for things done to the land—digging ditches or planting trees—if the owner turned up and wanted them removed? I think that the crux of the point raised by the noble Lord, Lord Greaves, was that local authorities should be able to take over completely and manage the commons. Of course, all those matters can be sorted out in the legislation, but they indicate how complex the questions are, and our view is that it would take a massive legislative effort to deal with them. The noble Lord, Lord Greaves, stated that some forums are not working well. That is why we are carrying out a review of the forums’ functions and considering how they may work better. We want best practice to be adopted more widely among the forums. I think that I covered the question of unclaimed land raised by the noble Baroness, Lady Byford. The problem is that land is unclaimed if no one is shown on the commons register as owning the land and it is not registered in the title register at the Land Registry. As I said, there is no waiting period. The noble Baroness also raised the question of forum advice. Advice would normally be given to local authorities on the use of their powers under Clause 43 to protect a common against unlawful interference in the interests of promoting public access. Also in reply to the noble Baroness, Lady Byford, Clause 43 does not replace powers for statutory commons associations to manage unclaimed land. Land is unclaimed if no owner can be found. There is no fixed period after which land becomes unclaimed. Her major concern in that area was whether we are removing powers. I am assured that we are not. The noble Lord, Lord Livsey, and the noble Baroness, Lady Byford, point out that a commons association established under Clause 40 would hold powers that would enable it to manage unclaimed land using the deemed consent procedures. That is a further reason why we resist giving that role to local authorities. There is a slight difference of opinion between Members of the Committee. My noble friend Lord Williams raised the issue of local authorities assuming ownership of land. There are some specific questions that my noble friend may want to raise under the clause stand part debate regarding common land. Perhaps he would like me to wait until he has spoken to clause stand part before responding.