Commons Bill [HL]

We move to Clause 18. Amendments Nos. 79 and 80, which were moved or spoken to by the noble Lord, Lord Livsey, would require the commons registration authority to seek the agreement of a statutory commons association and to consult with the public in exercising its powers to correct mistakes in the commons register. I hope that I can assure the noble Lord that his amendments go only a little further than we already intend to go in regulations. Clause 23 applies to applications and proposals for amendments to registers under Clause 18, as they apply to all applications under Part 1. Those powers enable us to make regulations for the purposes of making and determining applications and we fully intend that in the context of corrections to the registers under Clause 23 there will be public notification of what is proposed and an opportunity for objections to be made and heard. I can go further: where a commons association has been established under Part 2 in relation to a common, regulations will certainly require notification of the association about any proposal to exercise powers under Clause 18, although we think it would be going a little too far to give the association a power of veto, as the noble Lord’s amendment seems to imply. The determination of an application under Clause 18 must be a matter for the authority rather than the association. Amendment No. 79A, in the name of the noble Lord, Lord Greaves, would impose a duty on the commons registration authority to amend the register for the purpose of correcting errors. To an extent, we believe that that is already the effect of Clause 18. Where a registration authority receives an application for amendment of the register under Clause 18, it will be obliged to determine that application. The noble Lord, Lord Greaves, would perhaps prefer that the authority was also under a duty or obligation to seek out mistakes in the register and initiate proposals to amend those mistakes under subsection (4). We believe that registration authorities are very likely to deal with mistakes where they are aware of problems particularly affecting their own interests. In many registration authorities, experienced commons registration officers will have accumulated a long list of defects in the registers, awaiting new powers of rectification. Authorities may wish to deal with many of the entries on those lists of their own volition. Equally, many mistakes on the register will affect private interests. For example, the landowner may well wish to pursue the opportunity under the legislation to remove duplicate rights from the register, and the commoner may wish to correct an error in the description of his dominant tenement. In such cases, it would be quite wrong to impose an obligation on the authority to initiate an amendment regardless, not least because it would relieve the applicant of any obligation to pay any fee consequent upon his application. I remind the noble Lord that authorities will be under an obligation during the transitional period to review the registers under the provisions of Schedule 2, and to capture outstanding events which have not been registered since 1970. We have taken powers to prescribe what must be done during the transitional period. We shall come to Schedule 2 in due course. There will also be an opportunity for authorities to identify errors in the registers if they convert to electronic registers under Clause 24. They will then wish to use their powers under Clause 18 to make the necessary amendments. We think that the noble Lord’s amendment goes a little too far. Indeed, taken literally, it would require the authority to search out and correct every last minor flaw in the register, at quite considerable cost. The Bill already contains provisions to ensure that the more important errors which are amenable to correction under Clause 18 are likely to be identified and resolved. Perhaps I may deal with Amendments Nos. 81 and 82, in the name of the noble Duke; I know that they are probing amendments. Amendment No. 81 would clarify the powers to correct mistakes made by the registration authority in making or amending an entry in the register. It would make it clear that those powers were available, whether the entry had been made in the past or would be made in the future. That is precisely the effect of Clause 18(2)(a) in its present form. Paragraph (a) does not specifically refer to entries already made; therefore, the power will apply equally whether the mistake has been made in the past or will be made in the future. Amendment No. 82 deals with the test of fairness which a registration authority must undertake in relation to an application to correct the register. The amendment would remove the requirement to conduct the fairness test. On the face of it, it seems entirely reasonable that if there is an error in the register that qualifies for correction under Clause 18, that correction should be made; after all, that is simply a matter of putting right what is wrong. But some errors will be of long standing and have given rise to expectations which in the real world should not lightly be set aside. For example, the commons registration authority may have mistakenly excluded land from the register in 1968 by inaccurately copying an application for registration. That land may have been subsequently acquired by a person reliant on an inspection of the register, which of course showed it not to be registered common land at all. Subsection (5) provides, in effect, that the authority would not be able to correct the mistake if it would, in all the circumstances, be unfair to do so, having regard, for example, to the interests of the person who had acquired the land, as well as the interests of others interested in correcting the error. I break off from my brief to reply to a question asked by the noble Lord, Lord Greaves, about the expression ““unfair”” in legislation. I have no evidence to back it up at the moment, but it is my belief that the word appears on many occasions in legislation. It is for the courts to interpret what it means in any given circumstances, but there is nothing unusual about the word ““unfair”” being in legislation. If I am wrong about that, I know that the noble Lord will come back to me in due course. We believe that it would be too mechanical and too simplistic to provide that every eligible error must be corrected, come what may. Sometimes the circumstances will demand that sleeping dogs are best left to lie. The registration authority is tasked with carrying out that assessment, which is not always easy, and must be able to exercise its own judgment, as long as it is reasonable, in arriving at a determination. To do otherwise would be to risk some very hard cases indeed. When the noble Earl, Lord Peel, tells us that it would be a mistake to allow correction of excessive registrations or mistaken registrations of rights under the 1965 Act, we agree with him. We have listened to the views of many stakeholders, and recognise that many rights registered in the 1960s were inflated and excessive and sometimes when taken together out of all proportion to the capacity of the common to sustain such numbers. But we believe, in common with most interested parties, that we have to move on now, and that reopening those registrations 45 years later will not be helpful in achieving better management of our commons. I know that we can be criticised for taking that particular attitude, but we believe that it is living in the real world. We want to look to the future rather than constantly going back to mistakes that may have been made 40 years ago. I hope that I have gone some way to persuade the noble Lord that the Government are right on this.