4 The question of abolition
Evidence
for
44. In addition to the problems surrounding the process
of registering manorial rights which we have considered in the
previous two chapters, more fundamental objections have been raised
to the very existence of such rights. Those submitting evidence
in favour of the abolition of manorial rights suggested there
was "no place in today's society"[85]
for them, and that they were an "anachronism"[86]
in the 21st century. The written evidence from The Peasants' Revolt
stated that manorial rights were "a relic of a system designed
over 1,000 years ago under William the Conqueror, a time when
the king had absolute power and the lord of the manor could command
serfs to work on his land without payment in return for using
the land the rest of the time."[87]
Kim Thomas could understand why 1,000 years ago the rights of
the lord of the manor to hunt, shoot and fish, and to get access
to minerals "no doubt made perfect sense", but she could
not understand why when "almost every other property law
we associate with the 11th century has gone … these bizarrely
remain".[88] Mr
ap Iorwerth cited a paper by Professor Bray on the case for reforming
feudal land law:
The point that she makes in that is that it is inconsistent
that remnants of feudal law remain in operation; largely, land
law has moved on, she says, from ancient concepts and practices.
It makes little sense to have partial retention of feudal land
law for 21st century land holdings, she says. She says that the
remnants that remain cause uncertainty to the general public,
legal practitioners and the courts. One such area of uncertainty
is the nature and extent of manorial rights.[89]
45. Professor Bray herself was more cautious on the
question of abolition of manorial rights in her evidence to us,
stating that "they should be addressed. That is a lawyer's
answer." However, she did say that "the Law Commission
has missed an opportunity in their 10th programme of
reform when they thought of opportunities of whether to include
the reform of feudal law, which would include manorial rights.
If I was to be pedantic, manorial rights are outside the feudal
structure, but they have missed an opportunity. It highlights
that we really do lag behind other countries in allowing these
remnants of a feudal world to exist."[90]
Evidence against
46. The Ministry, while acknowledging that manorial
rights have their historic roots in the now "defunct manorial
system", has made clear its view that they are "in principle
indistinguishable from other property rights" and that it
"has no plans to change the law relating to manorial rights".[91]
The evidence goes on to state that "arbitrary abolition of
a type of property right could undermine confidence in the security
of other types of property right, which would be contrary to the
interests of property owners and the wider economy".[92]
When we asked Lord Faulks about abolition he affirmed that the
Government was "not convinced that, in practice, the exercise
of these rights is causing any injustice … leaving aside
the flutter of understandable anxiety that some people felt on
receiving these notices" and that it was not appropriate
"simply to wave away rights, unless they are causing real
problems, which the Government are not convinced that they are."[93]
47. Lord Faulks also highlighted the fact that the
Law Commission did not in its work prior to the 2002 Act consider
that manorial rights should be abolished.[94]
Similarly, Mr Towns told us that the 2001 Law Commission report
"did not consider the abolition of manorial rights feasible"[95].
However, as we noted earlier,[96]
it was the 1998 consultation document that considered that abolition
was not a viable strategy within the scope of the review due to
the financial implications of abolition, although separate consideration
of abolition in the future was not ruled out.
48. Others were particularly forceful in their defence
of manorial rights, with Mr Towns' evidence stating that "the
argument that property rights should be lost or abolished just
because they are historic is fallacious".[97]
He highlighted a court ruling in relation to easements-a separate
type of right-which confirmed that a right of way unexercised
for over 175 years remained extant.[98]
Mr Tetlow told us that "antiquity does not mean that there
is an irrelevance there"[99]
and that the Country Land and Business Association was "wholly
opposed to the abolition of manorial interests" which constituted
"valuable property rights and their abolition would be a
blatant attack on property rights".[100]
Mr Troman developed these arguments further, noting:
Whilst in public perception the concept of manorial
interests may appear arcane, to the owners of manorial rights
the interests are as tangible as any other property interest […]
To abolish manorial rights would not transfer an asset into public
ownership, but would amount to transferring a property interest
from one group of property owners to another. Only a relatively
small proportion of registered property titles are still subject
to manorial rights. It would therefore be difficult to justify
that abolition would be in the interest of the public as a whole.[101]
Implications of abolition
Human rights considerations
and compensation
49. Evidence from those against abolition of manorial
rights indicated that abolition would be likely to result in legal
challenges on human rights grounds under Article 1 of the First
Protocol to the European Convention on Human Rights, which is
related to deprivation of possessions and property, alongside
complaints that some manorial rights holders had expended significant
sums of money on researching and protecting their rights in accordance
with the 2002 Act.[102]
Mr Jessel also pointed out that it was "a very old principle
of English law that you do not take property away without compensation,
and that goes back centuries—before the civil war—so
I do not think it would be possible just to abolish valuable rights
without any compensation".[103]
The Ministry has acknowledged that if manorial rights were to
be abolished the substance of the right would in effect vest in
the landowner, which would amount to the forced transfer of property
from one person to another. Thus abolition would:
amount to a deprivation of property and […]
engage the right to the free enjoyment of possessions under the
Human Rights Act 1998. It is likely, therefore, that compensation
would have to be paid to persons deprived of their rights. The
amount of […] compensation would depend upon the value of
the rights abolished to the person thereby deprived of them.[104]
SCALE OF COMPENSATION AND METHODS
OF ABOLITION
50. Evidence received suggested that an appropriate
compensation scheme could address potential human rights issues,
but we were told by Mr Towns that the process of valuing manorial
rights would itself be "problematic" and might lead
to legal challenges.[105]
While the Ministry told us that it does not have any information
as to the value of manorial rights, [106]
Lord Faulks believed values would often be "very theoretical"
with agreement hard to achieve between the various parties.[107]
Lord Faulks also made the point that there would need to be consideration
of who was required to pay the compensation, the landowner or
the Government,[108]
while Mr Troman noted that the process of determining whether
there was any value, and then calculating this value would in
itself incur significant cost.[109]
We received little evidence on the scale of compensation upon
abolition. Written evidence from Michael Turner, Emeritus Professor
of Economic History at Hull University, stated:
I have attempted a back of the envelope calculation
of what 50,000 enfranchisements/compensations/ extinguishments
cost from 1841 to 1951 [the period when enfranchisement of copyhold
land occurred]. […] my calculation suggests that this process
saw the exchange of money from former manorial tenants to lords
of the manor of the order of £400 million (in real terms).
I emphasise that this is not the same as abolishing manorial rights
neither is it a scientifically verifiable estimate, but it might
be an order of magnitude.[110]
51. Mr Jessel, while stating that it would ultimately
be "very difficult to abolish" manorial rights noted
that there were an "awful lot" of past experiences and
precedents that could be used and adapted to calculate compensation
"without too much difficulty".[111]
Dr Stafford noted that the process of enfranchisement in the early
20th century included provisions for freeholders to
buy out the remaining rights from the lord of the manor under
a statutory compensation scheme which using this experience could
be "devised again".[112]
Mr Jessel developed possible procedures for abolition further
in his written evidence:
Parliament could give the landowner an option
to extinguish manorial mineral and sporting rights […] based
on procedures used under the Copyhold Acts and the [Law of Property
Act] 1922. The compensation for minerals might be typically half
the value of unworked deposits, reflecting the prospect of planning
consent and the costs of working. The compensation for sporting
rights would reflect the diminution in value of any adjoining
land of the lord. Where a market was originally granted to a lord
the law could be amended to make the rights free standing and
to cease any connection with the manor.[113]
52. The Ministry's evidence also suggested that arguments
"for and against the substantive abolition of individual
categories of manorial rights would have to be marshalled on a
subject matter basis."[114]
The point of distinguishing between types and locations of manorial
rights was made a number of times during the course of our inquiry,
both in the context of treatment and exercise of rights under
current law, as discussed in Chapter 3 of this report, and within
the context of abolition. Professor Bray believed that such consideration
was most relevant in the context of abolition,[115]
and we pursued the suggestion further with Lord Faulks that there
might be scope to abolish some categories of manorial rights,
particularly those held over densely populated urban residential
areas, while allowing others, for example those to mines and minerals
on rural land, to remain. He said that while he understood the
point:
it is quite difficult rigidly to define those that
are urban and those that are not urban […] There is also
the danger that if you have a classification of those rights that
you can abolish and those rights that are retained, you generate
a great deal of litigation between those who say, "My rights
fall into category A rather than category B." These are difficult
in terms of classification. To create a whole potential field
of litigation, unless there is a real practical problem, seems
difficult to justify.[116]
A Scottish parallel?
53. Professor Bray and others pointed to the example
of the abolition of the feudal system in Scotland,[117]
and suggested that while the structure and system in Scotland
was not directly analogous to manorial rights in England and Wales,
lessons could be learnt in terms of abolition and compensation
arrangements.[118]
Until its abolition in 2004 the feudal system in Scotland was
the main system of land ownership-the property owner held his
or her land or buildings subject to certain rights retained by
the "feudal superior". In her written evidence Professor
Bray suggested that the main similarity with manorial rights in
England and Wales lay with the payment of feu duties and feudal
burdens in Scotland, the latter of which included sporting rights
in rural areas.[119]
54. The Abolition of Feudal Tenure etc (Scotland)
Act 2000 ultimately abolished the feudal system in Scotland while
the Land Tenure Reform (Scotland) Act 1974 had already restricted
the significance of the superior's right to collect feu duty and
ensured it was not possible to create new feu duties.[120]
Remaining feudal burdens were largely abolished under the 2000
Act while giving the former superior a number of opportunities
to seek to preserve rights to enforce sporting rights after feudal
abolition, primarily to ensure the legislation was compliant with
the European Convention on Human Rights (ECHR). The legislation
provided for this to be adjudicated by a Land Tribunal and the
superior had to convince the tribunal that he or she would suffer
substantial loss or disadvantage if the feudal burden was lost.[121]
Professor Bray suggested similar legislation could be introduced
now which would aim to abolish the rights but provide for compensation
and allow those landowners who claimed loss or disadvantage to
bring a case before the Land Tribunal.[122]
However, the Scottish legislation dealt primarily with the principle
of feudal ownership and the removal of feu duties; and the exception
of sporting rights for ECHR compliance purposes illustrates that
the main issues raised by manorial rights in England and Wales
are not likely to be resolvable by legislation closely based on
the Scottish model.
Conclusion
55. The nature of manorial rights and the impact
of the relevant changes in the Land Registration Act 2002 have
inevitably led to the emergence of two opposed camps regarding
whether or not such rights should be abolished. In launching this
inquiry we did not intend to resolve the question of the ongoing
existence of manorial rights but rather to instigate a debate
on the current situation, raise the profile of the issue, and
inform any possible future review of the law in this regard.
56. What is also clear to us is that, although
claims to manorial rights affect only a small proportion of registered
titles and thus landowners, the process instigated by the 2002
Act has brought to light issues which are of real and ongoing
concern to those affected. Equally, we acknowledge that, while
some manorial rights may be impossible to exercise and of no practical
significance, there may be certain manorial rights, particularly
those related to mines and minerals over rural land, that are
of considerable and real value to the rights holders. It is understandable
that following the changes in the 2002 Act those who believe they
hold such rights have wished to take the necessary action in order
to protect those rights.
57. While we do not express a view on abolition
and note that it would almost certainly require the provision
of compensation to some manorial rights holders, not least because
of the human rights implications, it is important to highlight
the evidence received, in particular from Mr Jessel, that such
issues can be addressed and overcome if a suitable scheme is devised.
More generally, we draw attention to the body of written and oral
evidence from this inquiry and the suggestions in this evidence
which may be considered as a basis from which to develop further
thinking on the subject. We hope that this inquiry, and the submissions
made to it, will serve as an evidence base for the further work
recommended below to draw and proceed on.
58. For all these reasons we recommend that the
Law Commission conduct a project assessing whether the law related
to manorial rights should be changed, including the question of
whether all o some categories should be abolished, and how legislation
could appropriately address compensation and human rights issues
in such an event. It may be that such a project can be carried
out as part of the Law Commission's 13th Programme of Law Reform,
particularly given projects related to feudal law have been planned
in recent programmes but not delivered due to competing priorities.
However, given the 13th programme is unlikely to be determined
until 2017, we recommend that the Government refer a specific
project to the Law Commission outside of the law reform programme,
as is in its gift.
59. We also recommend that such a review should
be preceded by some consideration of and work by the Government
on the financial implications and provisions for compensation
which would be associated with abolition of all, or certain types
of, manorial rights, as the Law Commission has itself suggested.
85 Rhun ap Iorwerth AM (MAR0026) Back
86
Albert Owen MP (MAR0007) Back
87
The Peasants' Revolt (MAR0023) Back
88
Q 11 Back
89
Q 12. The paper Mr ap Iorwerth is referring to is: J. Bray, "Feudal
Law: The Case for Reform", in M. Dixon (ed.), Modern
Studies in Property Law vol.5 (Oxford: Hart, 2009), ch.4, 99-121 Back
90
Q 61 Back
91
Ministry of Justice (MAR0031) Back
92
Ibid. Back
93
Q 95 Back
94
Ibid. Back
95
Bond Dickinson LLP (MAR0028) Back
96
Para 6. Back
97
Bond Dickinson LLP (MAR0028) Back
98
Q 40 Back
99
Ibid. Back
100
Country Land & Business Association (MAR0027) Back
101
Tim Troman (MAR0016) Back
102
See for example Bond Dickinson LLP (MAR0028) Back
103
Q 65 Back
104
Ministry of Justice (MAR0031) Back
105
Bond Dickinson LLP (MAR0028) Back
106
Ministry of Justice (MAR0031) Back
107
Q 97 Back
108
Q 95 Back
109
Q 37 Back
110
Michael Edward Turner (MAR0033) Back
111
Q 64 Back
112
Dr Paul Stafford (MAR0039) Back
113
Christopher Jessel (MAR0004) Back
114
Ibid. Back
115
Q 54 Back
116
Q 96 Back
117
We are grateful to the Scottish Parliament Information Centre
for providing background information on the abolition of the feudal
system in Scotland. Back
118
Q 63 Back
119
Ibid. Back
120
The 1974 Act also introduced measures to allow property owners
to redeem, or buy out, existing feu duties by paying a lump sum,
while also provided for the compulsory redemption of feu duty
on the sale of land. This meant that there was only a small number
of feu duties which remained when the feudal system was abolished
in 2004, and while provision was made again for compensation to
be paid, these amounts were typically very small. It was calculated
by reference to 2.5% Consolidated Stock. A former superior was
entitled to such sum as if invested in the 2.5% Consolidated Stock
would produce an annual sum equivalent to the former feu duty.
For example, on 5th January 2005, the price of a unit of 2.5%
Consolidated Stock was £53.55 so in relation to an annual
rent of £5.00 a feudal superior would have received £53.55
by way of compensation. Back
121
Judith Bray (MAR0037) Back
122
Ibid. Back
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