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Lord Williams of Elvel: It might be useful if I raise one or two points which I was going to raise under the clause stand part debate. They are all part of the same debate.
I have a great deal of sympathy for what the noble Lord, Lord Greaves, is proposing on unclaimed land and for the idea that where there is doubtful ownership as opposed to unclaimed land the local authority can intervene. Again, I would like responsibility for these commons of doubtful ownership and unclaimed land to be vested in the local authority. This is a very vague area and I hope that my noble friend will be able to reassure me more than she has to date on the question of vesting it in the local authority.
The second matter relates to a point made by the noble Baroness, Lady Byford. In the Bill as drafted, at Clause 43(2), the local authority is entitled to do all kinds of things which the commons association apparently is not entitled to do. In other words, on unclaimed land the local authority can institute proceedings against any person for any offence committed in respect of the land. We have heard from my noble friend Lord Bach that the commons associations are not law enforcers. However, it would appear that the local authority can be a law enforcer on unclaimed land but not apparently on land that is already owned. I am not sure where we stand on that and I hope that my noble friend can give me some guidance.
Lord Greaves: I am grateful to the Minister for, yet again, giving a long reply. I am also grateful for the comments of the noble Lord, Lord Williams of Elvel, and to the noble Baroness, Lady Byford, who raised some extremely important questions.
With regard to the business of "may" and "shall", we are simply returning to the question of whether we believe that the Government can advise or persuade local authorities, perhaps by sending out circulars to them, to take much more interest in their powers relating to commons generally once the Bill is enacted. We look forward with interest to observing whether that happens. If it does not, no doubt various noble Lords will come back to the Government saying that the measure is not working as well as they suggested it would.
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I am becoming a little more concerned at the fact that the Government seem to be relying on local access forums to provide advice in relation to commons. Evidence from different parts of the country shows that local access forums work under the CROW Act with different degrees of effectiveness in different places. Some of them are getting a real life of their own—they are getting a grip of what they are doing and are working very well. Others are not working so well. In some cases, they simply seem to be another consultative meeting called by the local authority and are doing what the local authority wants.
In many places, people are concerned that the forums do not yet seem to have the strength and resources to be strong advisory or consultative bodies in the work they already do. I am certainly sceptical about whether they can take on further work in relation to commons, which, as we are all discovering as we go through the Bill, is a fairly complex and technical subject. Having heard the discussion this afternoon, I simply place on the record that it is an issue that we shall want to look at again. The Minister merely said that the Government are consulting about what new powers the local access forums might have in order to give advice on different matters, so thus far it is all a bit vague.
The crux of the matter lies in Amendment No. 335A—the question of vesting in local authorities and the suggestion that local authorities should have powers to take over the ownership of ownerless commons or unclaimed common land. At present, as I read it, the Bill does not give them any powers to do that. I am not satisfied that the Minister has given a satisfactory explanation as to why, in some circumstances, that might not be necessary. There is a general view on all sides that the system is not working at the moment—witness the large number of ownerless commons that exist. It is clearly not a satisfactory situation for anyone, not least the commoners.
The Minister suggested that it is not a matter of ownership but of management. But subsection (2) of the clause gives local authorities powers to,
in other words, a local authority will have the powers that an owner would have in those circumstances. The question is: what about the other management powers? The Minister spoke about those other powers only in relation to commons associations. But the vast majority of commons—at least in the early years—will not have commons associations, and I suspect that commons associations will not be able to take over and manage many unclaimed commons for a long time, if ever. So a different situation seems to exist between commons which will have associations to take on the management and those which will not, where there will be a vacuum.
Even with the Government's reference to "management not ownership", there does not seem to be an answer for the situation where there is no commons association. I do not know whether the
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Minister wants to reply to that point before I withdraw the amendment, but it seems to me that we have not got to the bottom of it at all.
6.15 pm
Baroness Farrington of Ribbleton: I shall seek to answer the noble Lord, but I am conscious that this area of inter-relationship and responsibility is one of the most complex. As my noble friend Lord Williams of Elvel said, there is an overlap here with the clause stand part debate that will follow. I shall seek to answer some of the specific points and, when we reach the debate on clause stand part, I promise not to repeat the part of the answer that relates to that.
English law does not look kindly on the confiscation of private property rights. The Committee will be aware that the Human Rights Act 1998 confers specific protection for such rights. Just because no one has come forward to claim the title to a common since the 1965 Act was passed or, indeed, since long before then, we cannot assume that there is no known owner. Under the 1965 Act, it was not obligatory to register ownership of title to land, and the Act expressed no particular consequences for a failure to do so.
So we start from the position that the true owners of unclaimed common land have never been effectively challenged to come forward. Limitation law enables an owner to challenge the usurpation of his title—for example, by adverse possession—for a substantial period after the challenge begins. Usually that is 12 years but, in the case of minors, those incapable of managing their affairs, the Crown and certain institutions, it is 30 years. We believe that that means that any measures to enable unclaimed common land to be vested in a local authority must respect the possibility of a challenge by the true owner of the land at any point up to 30 years after the vesting. That poses problems for the effectiveness of such measures.
What would be the impact on a local authority managing vested land when its responsibilities could be taken away at any time? How willing would it be to invest in the land if there were no guarantee of permanency? That relates to the point raised by the noble Lord, Lord Greaves, but from a slightly different angle. What would happen to receipts—for example, from granting easements for vehicular access—if the true owner turned up later? Would the local authority be liable for things done to the land—digging ditches or planting trees—if the owner turned up and wanted them removed? I think that the crux of the point raised by the noble Lord, Lord Greaves, was that local authorities should be able to take over completely and manage the commons. Of course, all those matters can be sorted out in the legislation, but they indicate how complex the questions are, and our view is that it would take a massive legislative effort to deal with them.
The noble Lord, Lord Greaves, stated that some forums are not working well. That is why we are carrying out a review of the forums' functions and considering how they may work better. We want best practice to be adopted more widely among the forums.
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I think that I covered the question of unclaimed land raised by the noble Baroness, Lady Byford. The problem is that land is unclaimed if no one is shown on the commons register as owning the land and it is not registered in the title register at the Land Registry. As I said, there is no waiting period. The noble Baroness also raised the question of forum advice. Advice would normally be given to local authorities on the use of their powers under Clause 43 to protect a common against unlawful interference in the interests of promoting public access.
Also in reply to the noble Baroness, Lady Byford, Clause 43 does not replace powers for statutory commons associations to manage unclaimed land. Land is unclaimed if no owner can be found. There is no fixed period after which land becomes unclaimed. Her major concern in that area was whether we are removing powers. I am assured that we are not.
The noble Lord, Lord Livsey, and the noble Baroness, Lady Byford, point out that a commons association established under Clause 40 would hold powers that would enable it to manage unclaimed land using the deemed consent procedures. That is a further reason why we resist giving that role to local authorities. There is a slight difference of opinion between Members of the Committee.
My noble friend Lord Williams raised the issue of local authorities assuming ownership of land. There are some specific questions that my noble friend may want to raise under the clause stand part debate regarding common land. Perhaps he would like me to wait until he has spoken to clause stand part before responding.
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