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Baroness Byford: I thank the Minister for that full reply, but I did not understand when she said that there was no waiting period. I was not sure to what she was referring when she said that. I will read Hansard carefully, but I was not sure to what she was referring.
Baroness Farrington of Ribbleton: There is no waiting period for land to be registered or for registration to be completed. That is my understanding. I may need to clarify that further for the noble Baroness because, at present, inspiration is not striking me.
Baroness Byford: I am grateful.
Lord Greaves: I wonder whether inspiration will strike any of the rest of us. I am grateful for that further discussion. This is an important question and one to which we may need to return. What the Government appear to be saying about unclaimed land is that the position is extremely complicated; that there are very good reasons why the proposals in my amendment are unsatisfactory and inappropriate but that they cannot think of any other solution. Under those circumstances, the matter merits further debate as the Bill passes through the House. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 234 and 235 not moved.]
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On Question, Whether Clause 43 shall stand part of the Bill?
Lord Williams of Elvel: I started to address two particular problems that I have with Clause 43. In the light of what my noble friend said, I think that they are relevant. The first concerns where ownership of a common is doubtful; where it is not proved. That is the case in a number of places in Wales where ownership is claimed but not established by law. I mentioned that earlier. Doubtful ownership should be something that the local authority, as the registration authority, first of all, should try to prove or disprove. If disproved, we return to the question of vesting. The question is really whether a local authority should be able pro tempore, as it were, to take over a common before the registration authority—that is, the local authority in its capacity as a registration authority—has determined who owns the common and whether it should be on the Land Registry.
My second difficulty with Clause 43 I also mentioned. It specifically states that on unclaimed land the local authority can do all sorts of things that it cannot do on claimed land or land in doubtful ownership. It can institute proceedings against any person for an offence committed in respect of the land. In other words, the local authority, with its resources, can take proceedings on unclaimed land against, say, motorbikes or 4x4s that travel across the land illegally. That is an offence in respect of the land. The local authority has no entitlement to do that at present on owned common land. My noble friend Lord Bach does not like the idea of a commons association enforcing it, but the clause provides a specific duty laid on a local authority to prosecute, effectively, unlawful interference and,
I am slightly baffled why local authorities have been given these very important and draconian powers when they have not been given to the owner of a common when a common is in normal ownership, or to the putative commons association. I should be most grateful if my noble friend could help me out.
Baroness Byford: I support the noble Lord, Lord Williams of Elvel, in his question to the Minister. We touched on it in our debate on the previous amendment, which is where some of my concerns came from.
Lord Livsey of Talgarth: If the local authority were able to gain even caretaker ownership of the land it should be possible, under the powers of the Bill as it stands, that the commons registration authority residing in the local authority could construct a new commons association. At least that would secure the good management of the common, which would be an entirely desirable state of affairs.
Baroness Farrington of Ribbleton: I am not quite sure what the legal position would be. I should like to take advice on the suggestion of the noble Lord, Lord Livsey.
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I hope I shall be able to answer the points raised by my noble friend Lord Williams of Elvel. We believe that a sort of pro tem ownership in the case of unclaimed land, which I accept he is concerned about, is not practicable for the reasons given in response to the amendment of the noble Lord, Lord Greaves, on Clause 43. However, we accept that there is a difference between the role of the local authority where land is unclaimed and where it is in separate ownership with a commons association working on it. That is my understanding of the position.
My noble friend also referred to whether Clause 43(2)(b) obliges the local authority to pursue offenders using vehicles such as motorbikes and 4x4s. The provision does not oblige local authorities to pursue offenders; it just gives them the power to do so. It may sometimes be more appropriate to leave enforcement to the police. The local authority may enforce against motor vehicles on unclaimed common land under Clause 43, as it may now under Section 9 of the 1965 Act. Indeed, any person may prosecute for such an offence.
We have provided powers in Clause 44 for certain bodies to have powers of last resort to deal with unlawful agricultural activities on any commons land. These powers will not be available to local authorities because they do not have the expertise or skills to deal with such issues. I hope that my noble friend Lord Williams of Elvel will accept that that is the difference between the role and the power of local authorities to act in respect of owned land and unclaimed land.
My noble friend has commended to us the prospect of local authorities taking on the management of unclaimed commons. They can already do this in the majority of cases by schemes of management under the Commons Act 1899. To the best of our knowledge, the existing powers work perfectly well.
My noble friend Lord Williams said in debate on Amendment No. 2 that graziers, commoners and those who own common rights on common land should know who owns the land instead of their having to go to the Land Registry and acting through expensive lawyers. He was unhappy to wait until 2012 or 2024 but he will know that that is how the law in this country works. We cannot give him or commoners the sort of instant assurance sought because, for the reasons that I gave earlier, the state cannot be allowed to remove land simply because it has not been claimed.
The noble Baroness, Lady Byford, asked whether the waiting period would have to run its course before the land was deemed unclaimed. No, it is a matter of whether the owner is recorded on either the land register or the common land register. That was the only point that I made.
My noble friend Lord Williams may not sympathise with our disinclination to deliver on vesting but we have considered the matter very carefully and conclude that, taken with existing measures, the Bill goes sufficiently far to deal with those problems that exist. Further provision could be counterproductive and would probably be unnecessary.
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I am very conscious that this is a complex area. I will read carefully all the contributions made by noble Lords. If I have failed to cover any of the technical details or points raised, I shall write to the noble Lord concerned, with copies to all Members of the Committee who have taken part.
6.30 pm
Clause 44 [Powers relating to unauthorised agricultural activities]:
Lord Greaves moved Amendment No. 236:
The noble Lord said: I shall speak also to Amendment No. 237. This group also includes two amendments tabled by the noble Lord, Lord Rotherwick, who has noticed that the words "sustainable agriculture" survive in this part of the Bill when they have been removed everywhere else. I look forward to that discussion.
Amendment No. 236 relates to our previous discussion on the difference between what happens when there are unauthorised agricultural activities under Clause 44 and when there is other unlawful activity under Clause 36. We have discussed that matter thoroughly. Some of us wish to consider it further and so I shall not pursue it at this stage.
Amendment No. 237 is rather different. Clause 44 refers to the powers relating to unauthorised agricultural activities. However, subsection (1)(c) relates more to the effect of the activity rather than the activity itself. It refers to activity that is,
My amendment would change it to read,
There are two questions here. The noble Lord, Lord Rotherwick will raise the first question about whether "sustainable agriculture" is the appropriate phrase to have here. Secondly, it is clearly possible for there to be unauthorised agricultural activities which in themselves do not affect the protection and promotion of sustainable agriculture but may affect the overall management of the land—for example, they might affect access, disturb a SSSI or raise conservation amenity issues. So there may be a difference between the activity itself—which is clearly agricultural in this clause—and its effects. The purpose of the amendment is to draw attention to that and to suggest that paragraph (c) should be widened to include all consequences, not only agricultural consequences. I beg to move.
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