My Lords, I thank warmly all noble Lords who have spoken. I hope that they will excuse me if I do not go into a huge amount of detail on what has been said, because all the matters that I feel are important have already been covered.
The noble Earl, Lord Kinnoull, and the noble Baroness, Lady Gardner, raised two core issues: first, access to justice and, secondly, the question: if not this Bill, then what and when? That will perhaps be more apparent at the end of the year, when the results of the scoping study are better known and the department’s further consideration becomes available to us. I live in hope, but at this juncture it is difficult to predict that.
The noble Earl, Lord Erroll, raised a different type of issue. I will ask him to forgive me if I do not go into detail on that either, save to say that questions of orphan bits of land—verges, footpaths, left-over bits from once larger landed estates and so on—are hostage to what can sometimes look like a land grab. With it, the extent of public and private rights and easements are considerations that are often shorn from the resultant successful registration of title by adverse possession, regardless of the physical presence of the representative bits of conduit underneath the ground.
I thank the noble Lord, Lord Kennedy, for the support of his party on this issue. I think that we all share the fundamental aims that we are trying to achieve.
I thank the Minister for saying that the question of the reference to the Technical and Construction Court can relatively easily be dealt with, and I believe that that is the case. He then turned to his core reservations. He felt that expert determination or mediation was the way forward but he regarded this Bill as radical. I do not entirely share that view given that the constituent bits of the mix, as I have explained, have been rather well trailed and bench-tested for the past decade or more. That apart, the Minister still did not explain why under current terms enforcing expert determination and mediation, which is ultimately the only way of corralling these things, can be dealt with other than by being somewhat radical in approach. So we possibly part company there, but it may be a matter for further discussion at some juncture.
I appreciate that an assessment of a boundary may only partly be a technical issue, but getting rid of the assessment of what I might call the physical issues in advance and dealing with it by way of surveyors of both sides would refine the situation in a way that it tends to be refined anyway at the stage when, later on, litigation is well under way. At that point, the trial judge and the protocols demand that a technical expert be appointed by either side if they cannot agree a single joint expert and that a report be then produced which has to be exchanged or, at any rate, comes before the court. However, at that stage, much powder and shot has already been expended in the battle of
wits between, as we have heard, often very unequal parties. I cannot help thinking that putting the consideration of the factual and technical basis before the process rather than part way through would be of benefit generally.
Clearly, the Minister has to have the construct of due process and the proper sanctity of the court. He mentioned comments made back in January by the noble and learned Lord, Lord Hope of Craighead, when he referred to excluding the court entirely. I suggest that that is a slight exaggeration of what is contained within the Bill because that is not what it does. It leaves the backstop of judicial scrutiny in place. I understand the issues and in a sense we are where we are, but I believe that the Bill has merit. We should continue to discuss it and therefore I ask the House to give the Bill a Second Reading.