Lord Grabiner (CB)

My Lords, I support this amendment and have added my name to that of the noble Lord, Lord Banner. I am afraid that the noble Lord, Lord Pannick, is unable to be with us this afternoon and apologises to the Committee for his absence. The background has been well explained by the noble Lord, Lord Banner, and I shall emphasise a couple of points. The purpose of the amendment is to reverse the decision of the Supreme Court in the case of Dr Day v Shropshire Council. In paragraph 116 of her judgment, Lady Rose very fairly said: “I recognise that this leaves a rather messy situation”. The mess referred to by the learned Supreme Court Justice is that, although the land was acquired by the purchaser in good faith and for value, and the Local Government Act 1972 expressly confirmed that a good title passed to the purchaser, the fact that the local council failed to advertise the proposed sale in local newspapers for two weeks meant that the public right to go on the land for recreational purposes remained in place. As a result, the land cannot be developed and, as the noble Lord, Lord Banner, suggested, it is blighted, effectively forever, because the original failure to advertise cannot ever be put right. Also, your Lordships will readily appreciate that the original sale by the local authority in such cases may have taken place many years earlier, which would likely give rise to the key evidential question: was the original sale properly advertised? It would be impossible to go back to the records in a case that had happened many years earlier. The noble Lord, Lord Banner, explained what happened in Committee and on Report during the passage of the Planning and Infrastructure Bill, and I need not repeat the history. That said, when this issue was before this House, concerns were expressed by some noble Lords about the form and content of that amendment. The concern—I hope that I summarise it accurately—was that the amendment would merely have reversed the decision in the Day case, leaving members of the public who are concerned to protect recreational space with no ability to challenge a proposed sale. Amendment 222C takes full account of that concern. It would make provision for a robust public consultation process; it would mean that an application would have to be made for a statutory trust discharge order, associated with strict requirements for the giving of notices and the publication of suitable local advertisements. Before making the order sought, the Secretary of State would be obliged to take account of all comments received and would have to be satisfied that the qualifying conditions were met, as per proposed new Section 128A(2)(b). The qualifying conditions are precise and stringent, as laid out in proposed new Section 128D. Most importantly, new publicity requirements, as set out in proposed new Section 128E, would have to be complied with, as per proposed new Section 128(D)(9), and the Secretary of State would have to be satisfied—this is critical—that it was in the public interest for the relevant land to be freed from the public trusts by virtue of the order, as per qualifying condition F in proposed new Section 128D(10). I inserted the word “public” there for clarification purposes. The public interest is fully defined. I do not need to repeat what the noble Lord, Lord Banner, already said on that point, but it is defined in the widest possible terms in proposed new Section 128D(11). I appreciate that there are more wide-ranging concerns regarding recreational space and general well-being, as expressed by the Campaign to Protect Rural England and others. For those groups, we are told, this amendment does not go far enough. I will respectfully make two points on that. First, this amendment has a very precise scope. It is not concerned with the much wider political issue of—