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Lord Bach: Clause 6(1) enables new rights of common to be created in certain circumstances. One of those circumstances is where the rights are created pursuant to any other enactment. Amendment No. 8 moved by my noble friend would provide that no new rights could be created under other enactments, while Amendment No. 10 would have the effect that a new right could be created over any land, whether registered or not, and whether attached to land or not.

The purpose of Clause 6(1)(b) is to safeguard the creation of new rights where such rights arise by virtue of some other statute affecting common land. By way of example, on a compulsory purchase of common land under Part 1 of the Acquisition of Land Act 1981, the land acquired must generally be replaced with land given in exchange, and the rights discharged from the acquired land are vested in the exchange land. In such cases it is, of course, wholly in the interests of persons entitled to such rights that their rights are recreated over the exchange land, and the words in paragraph (b) preserve that effect in other legislation.

The National Assembly for Wales has no general power to create enactments as referred to in Clause 6(1)(b). I appreciate the noble Lord's concern that future legislation may seek unreasonably to impose new rights on land by taking advantage of the
 
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exception contained in paragraph (b). But that is the prerogative of Parliament. Whether or not paragraph (b) is present in the Bill, there is nothing to stop a future Parliament seeking to create new rights—although that is rather unlikely.

Amendment No. 10 arises from my noble friend's desire to know what the expression "express grant" means. It means that a right is expressly created by a deed or other instrument as opposed to arising from some other operation of law, for example, prescription. So an express grant is expressly created by a deed or other instrument.

Lord Williams of Elvel: I am most grateful to my noble friend. I am sure he will be aware that in this House and in another place we are very resistant to retroactive legislation. I am sure that his firm words that Parliament will not produce any further enactments that will affect common rights will go down—along with other statements of principle by Ministers—in stone. I am grateful for my noble friend's explanation of the term "express grant". I was slightly confused about what it meant, but I am now clear. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Greaves moved Amendment No. 9:


(c) by being acquired over land by prescription"

The noble Lord said: This is the first of a number of amendments that I have tabled in Grand Committee. I am very grateful for the amount of work that has been done, particularly by the Open Spaces Society, in helping to put the amendments together. That applies to most of the amendments I have tabled. The Open Spaces Society has done that in association with various other groups including the Ramblers' Association, the Friends of the Lake District and the Council for National Parks.

I should, not in relation to this amendment but in general, declare an interest as a member of the Access and Conservation Group of the British Mountaineering Council. That interest relates to various amendments that I shall move which concern specifically the access angle of commons.

Amendment No. 9 seeks to reintroduce the ability to create common rights, and therefore to create commons, via the right of prescription, which I believe was first set out in the Prescription Act 1832—although I may be wrong about that. It would enable people who have been able to carry out various activities on land to claim those as common rights if they have carried out those activities without challenge over a period—I believe that it is 30 years in the 1832 Act.

The Explanatory Notes, which are very useful—they do not simply repeat what is written in the Bill but try to explain it—state that Clause 6,

in other words, to abolish most of the present ways in which common rights can be claimed. The notes suggest that,
 
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They suggest that, so far as prescription is concerned, the reason for abolition is to create certainty and add,

Perhaps the Minister now has more accurate information about that. Even so, if it is rarely used, there appears to be no reason why where common rights are being exercised and the activities are being carried out, that should not be claimable as a common in future. That is the purpose of the amendment.

I, too, was interested and a little perplexed by the expression "express grant". The noble Lord, Lord Williams, says that he now understands it. I am not a lawyer and I do not understand it, so perhaps I may press the Minister further on the exact meaning. Does it mean that even after the transitional period, when the other rights are brought to an end, anyone who owns a piece of land can, by an express grant, declare it to be a common? Does it mean that a landowner can dedicate his land in association with a putative commoner? Does it mean that the landowner—whether it be a public body, an individual or whoever—can create a new common in association with the people who would be the commoners, by agreement, by express grant, by one of these legal deeds or whatever? That is a crucial point. If it does not mean that, what does it mean? I do not understand it. I beg to move.

Baroness Byford: The last question asked by the noble Lord, Lord Greaves, falls within the sentiments of an amendment tabled by my noble friend Lord Vinson. I am therefore interested in the Minister's response, but will return to the matter when we debate his amendment in full.

Lord Bach: As the noble Lord, Lord Greaves, said, his amendment would ensure that rights of common could continue to be acquired by prescription. The effects of Clause 6 are that rights of common can no longer be acquired except by express grant or as a result of some statutory provision. Therefore, it abolishes the common law position that rights of common can be acquired over land by long, uninterrupted use, whether by custom, prescription or the doctrine of lost modern grant.

Why does the Bill say that? It does so in order to promote greater clarity about the status of any land. We intend that the registers will become effectively conclusive about whether the land is or is not subject to rights of common. Where a right is registered over land, the register will be conclusive that the right is at least exercisable. Equally, if no rights are registered over land, the register will be effectively conclusive that no such rights exist.

Were we to retain the principle of prescription, there would always remain some doubt about whether some latent right existed which had not been registered. That could cause real difficulties for managing the land if,
 
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for example, it is possible for someone to come along and say, "I have been grazing this land for 20 years and although my rights do not appear in the register, you must treat me as a commoner".

Members of the Committee may ask whether the abolition of prescription will not adversely affect the interests of farmers who might otherwise benefit. We do not believe so. To the best of our knowledge, only one new area of common land has been created by the creation of a new right of common since the 1965 Act. In that case, the new right came into being by express grant, not by prescription.

It is not possible to say whether any new rights of common have been acquired by prescription over existing registered common land, because the 1965 Act does not enable such rights to be registered, and some would say neither does the Act allow the rights to be exercised. Schedule 2 enables such rights, if they are capable of existing, to be registered during the transitional period. But we do not think it helpful to encourage the acquisition of new rights of grazing by prescription over existing commons, many of which may already be subject to excessive numbers of grazing rights. Indeed, they may be over-grazed. Instead, our amendments to Clauses 6 and 7 will enable the express grant of new rights of common where the registration authority is satisfied that the common can sustain both the new right and the existing registered rights. That is the right way to proceed, so that new rights come into existence only in reasonable and clearly defined circumstances.

The noble Lord pressed me on what an express grant was in the context of his amendment. The answer to his question about a landowner is that a landowner can dedicate his land as common by granting one or more rights of common over his land. However, that would require an express grant—a right expressly created by a deed or other instrument—under Clause 6.

The time has come when rights gained by prescription in this context should no longer be the case. That is why I invite the noble Lord to consider what I have said on the matter.

4.45 pm


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