Commons Bill [Lords]

I confess that I am puzzled by this group of amendments. Obviously I am very familiar with the debates that we have had on the issue of access over common land and village greens, and the work that was done by my right hon. Friend the Member for Bracknell (Mr. Mackay) and others to try to resolve the problems, but I am puzzled about why it is necessary to abolish section 68 of the CROW Act. I hope that the Minister can clarify the reason. I am very much aware of the House of Lords judgment in Bakewell Management Ltd v. Brandwood and it is my understanding that it is on that basis that the Minister has been advised that section 68 should be repealed. However, it has been put to me that if we remove section 68 and the possibility of being granted a statutory easement thereunder, we are in effect reverting to the old arrangements involving a ransom payment, which were precisely what section 68 of the CROW Act was intended to overcome, because, as a result of the repeal, the landowner might then be in a better position than before to make a charge for a house owner driving over the land to gain access to his property, and might take all necessary steps to stop an easement being acquired over it, in order to keep his options open. That was not the intention of the Government, or indeed the Opposition, when section 68 of the CROW Act was enacted and I do not understand why we need to repeal it now. The Minister said that the section has become redundant for legal reasons, but we do not know what those are. Indeed, it has been put to me that there are no legal reasons for abolishing it. Not impossibly, a householder might actually prefer, notwithstanding having made a payment, to have the grant of a statutory easement under section 68 than to have it prescribed under common law, because of the problems of producing evidence of the use and of getting his title right. To remove that possibility is also unhelpful to householders. It has been put to me that if we remove section 68, we are in effect reverting to what I understand was called the Hanning v. Top Deck Travel era—with the illegality bar removed—when, for example, a commercial company claimed to have acquired the prescriptive right to drive a double-decker bus over a common, but without being able to do anything effective about it. It is important to remember that section 68 was enacted precisely to address that sort of situation by providing that there should be no vehicular easement to drive over common land, except as provided by section 68. That is an important protection for common land. Why does the Minister want to abolish section 68? What is it about the case to which I referred—Bakewell Management v. Brandwood—that he believes makes it unnecessary? The argument is that a House of Lords judgment cannot abrogate a statute that this House has passed; it can only interpret it. When we enacted section 68, the House decided that a payment should be made and that there should be no free easement in situations in which Parliament has resolved that there should be a payment. I do not think that anything has occurred to alter Parliament’s view. Following that logic, section 68 is not redundant. The House of Lords does not have the power under the constitution to abrogate a statute. Section 68 of the CROW Act was, in any case, not a pleaded issue in Bakewell Management v. Brandwood. It was not even part of the case. The observations of the House of Lords in that reported judgment, as far as section 68 and the CROW Act are concerned, did not form part of the ratio decidendi—the argument at the end of the case. The contention is that section 68 is not therefore redundant. In fact, it constitutes the only means that the House has provided whereby an easement can be acquired to drive over a common. I hope that the Minister will come back with some more information as to why he believes that what he wants to do is necessary. We all agree with what we were originally trying to achieve, but I am unclear about why it is necessary to abolish section 68 to try to do that. By abolishing section 68, the Minister might be creating more problems than he thinks.