HL Deb 16 July 1872 vol 212 cc1217-24

Amendments reported (according to Order).

Clause 3 (Allotments for recreation ground and field garden out of common).

LORD REDESDALE

objected to the provision by which, in the case of every inclosure, there should be an allotment of not less than one-tenth of the whole extent of the common for the purpose of recreation grounds and field gardens. Such a provision ought not to be assented to. Were the lords of the soil and the commoners to be told that they must not have an inclosure, except on the condition of giving up one-tenth of the land? That was a new principle.

THE EARL OF MORLEY

denied that the principle was new. Under the Act of 1845 the Inclosure Commissioners had power to make allotments for field gardens and recreation grounds.

LORD REDESDALE

contended that the principle was new, because the word "shall" was now proposed to be substituted for "may." In some commons there were persons who had a just claim to have such allotments made, and it was therefore necessary that the Commissioners should have power to award them; but where no one had any such right, to make the allotment compulsory was an invasion of property.

THE EARL OF KIMBERLEY

said, that if the thing was wrong in principle, it was wrong whether done directly by an Act of Parliament or indirectly through Commissioners. By the Bill now before their Lordships nothing more was proposed but that which the Act of 1845 gave the Commissioners a discretion to do. There was no invasion of property in the case.

LORD PORTMAN

said, that the proposition for the allotment of one-tenth or 50 acres as a minimum, when the common exceeded 500 acres, was carried in the Committee of the House of Commons by the casting vote of the Chairman, and could not be called the opinion of the House. There was a recommendation also that the extent and peculiar nature of each kind of private rights should be taken into account when such an allotment was being made, which showed that a minimum could not be intended to be absolutely enforced. In some places there were no people to enjoy recreation grounds. He knew of some places inclosed under the present law where a small allotment had been made for recreation, which was now waste, because no one used or wished to use it; and such places would hereafter be found where one-tenth of the common would under this scheme be wasted. The theorists would not look at existing facts; but it was the duty of this House not to overlook them. With the view of securing that not more than one-tenth or 50 acres should in any case be allotted, he begged to move the omission of the word "less," in order that the word "more" might be inserted in its stead.

THE EARL OF MORLEY

hoped their Lordships would not agree to the Amendment. If the Amendment were adopted, it would be impossible to allot for the purposes of field gardens and recreation grounds more than one-tenth of the whole extent, or 50 acres, whatever the size of the inclosure, and the minimum regulation would be cut out of the Bill. That would defeat completely the objects contemplated by the Bill—namely, to afford recreation ground in accordance with the population in the neighbourhood of the inclosure. The Commissioners were to have regard to all the circumstances which ought to be considered in making an allotment. True, the allotment of a minimum of one-tenth in some cases and of at least 50 acres in all others was compulsory, because the justification of this Bill was, that in the opinion of the country and of the House of Commons, the Commissioners had not exercised their discretion as to allotment in a sufficiently liberal manner, the percentage of public allotment for field gardens and recreation grounds having been only 1 per cent of the whole of the inclosed land. So strongly had the Committee of 1869 felt on the subject, that they recommended to Parliament that no further inclosures should be allowed until a principle should be established upon which public allotments should in every case be set out. The principle of this Bill was to lay down a minimum and not a maximum. He trusted their Lordships would not pass this Amendment, which was contrary to public opinion, and to the opinion of the House of Commons.

LORD ORMATHWAITE

thought it was going too far to assume that the opinion of the country and of the House of Commons was in favour of this Bill, merely because the Committee of the House of Commons had made certain recommendations which had not yet been acted upon by that House.

THE MARQUESS OF SALISBURY

objected to the fallacy that whenever Parliament was asked to remove any small impediment which stood between individuals and their rights, Parliament was entitled to levy black mail on the persons who came to it, requesting the necessary facility. What Parliament had to do was to give effect to existing rights and remove impediments, and not follow the example of the ancient Robbers of the Rhine, who levied toll on all who passed under their castles. Such conduct was hardly worthy of the honesty which Parliament was bound to profess and act on. The next fallacy to which he objected was that involved in the sentiment to which noble Lords opposite were so fond of referring—that "public opinion" was in favour of the measure. Now what did "public opinion" mean in such a case? A few articles in newspapers and a few speeches from crotchety orators. It was a favourite resource of the Bench opposite to threaten their Lordships with an autumn agitation; but they could scarcely be threatened with an autumn agitation about such a Bill as this. He did not suppose that the cry for the abolition of the House of Lords could be revived on this Inclosure Bill. Those references to "public opinion" were not very wise. There was a small, but he admitted, noisy party who thought their opinion ought always to prevail with their Lordships; but what their Lordships' House had in all cases to do was to endeavour to ascertain the right course, and carry it out without regard to what might be said of them. In the case under consideration he thought a discretion ought to be left to the Commissioners, and that the Bill ought not to lay down so rigid a rule as it did in respect of the space to be allotted for field gardens and recreation grounds.

THE EARL OF KIMBERLEY

said, he did not agree with the noble Marquess in thinking there were two fallacies in the arguments adduced in favour of this clause; but he hoped the noble Marquess would not be angry with him, if he said that he had made use of two fallacies in answering those arguments. The first fallacy assumed by the noble Marquess was, that whenever anyone came to Parliament for permission to exercise his rights, Parliament was entitled to levy "black mail" on that person; but the noble Marquess had fallen into an error on that point. This was not a question of the exercise of rights. If the lord of the manor possessed those rights which the noble Marquess supposed him to possess, he would have nothing to do but exercise them, and he need not come to Parliament. Nothing could be more certain than that the lord of the manor and the two-thirds of the commoners would not have had the power of making an inclosure but for the Act of 1845. When confiscation was spoken of with reference to this Bill, he would ask whether the Act of 1845, which gave the lord of the manor and two-thirds of the commoners the right to inclose a part against the will of the remaining one-third of the commoners was confiscation? He did not believe it was, nor did he believe this Bill was confiscation; but certainly the term would be quite as applicable to the Act of 1845 as to this Bill. He held that if persons who had not a right came to Parliament to have a right conferred upon them, Parliament, acting in the public interest, had a right to annex conditions to the granting of the right without exposing itself to the charge of levying black mail. The second fallacy assumed by the noble Marquess was that the "public opinion" spoken of in this case was that of a few newspaper articles and a few crotchet-mongers. A Committee of the House of Commons had recommended that no further inclosure should be allowed until the law was altered. Was not that an expression of public opinion? He thought the opinion of the House of Commons might be quoted as that of the country. His noble Friend (the Earl of Morley) had quoted it as against the existing law, but he had not claimed the sanction of the House of Commons for this Bill, because it had not been before the House of Commons yet. This Bill was not one of confiscation; it was an "enabling Bill," because it enabled the lords and the commoners to extricate themselves from the difficulty in which they were now involved.

THE DUKE OF MARLBOROUGH

thought that before their Lordships went further with this Bill, the Government ought to tell them what were its chances in "another place." From a statement which Mr. Gladstone was reported to have made last night, it would appear that the right hon. Gentleman regarded it as doubtful whether this Bill could be proceeded with in the present Session.

EARL GRANVILLE

said, he had not the words of his right hon. Friend before him, but he believed Mr. Gladstone had mentioned the Bill as one which the Government were anxious to have passed.

LORD REDESDALE

maintained that the Bill would inflict great injustice, if this question were not left to the discretion of the Commissioners, as the circumstances in one case might differ widely from those in another.

THE EARL OF CHICHESTER

said, the public had at least quasi rights for recreation and other purposes, and if they were taken away, were fairly entitled to compensation in the shape of recreation grounds for the inclosure of open spaces of which they had had the use.

THE EARL OF MALMESBURY

said, that nothing could be more absurd than to lay down that a certain extent of recreation ground must be allotted. Regard ought to be had to the circumstances of the locality. There had been a great outcry in some places against any invasion of the public right to use commons for recreation and other enjoyment, when the area was far greater than was required for the purpose—as take the case of the New Forest.

On Question, That the word proposed to be left out stand part of the clause?—Their Lordships divided:—Contents 67; Not-Contents 60: Majority 7.

THE EARL OF MORLEY moved to insert after Clause 5 the following clause;— Where the commissioners receive such application and undertaking as hereinafter mentioned, they may, in their Provisional Order relating to any land proposed to be inclosed, specify that one of the terms and conditions of the inclosure thereof is the appropriation, in addition to the recreation ground required by this Act to be allotted, of paths or rides or drives for the exercise and recreation of the inhabitants of the neighbourhood. The provisions of the General Inclosure Acts, 1845 to 1872, relating to allotments for recreation grounds (including those relating to the vesting of the soil in any private person with his consent), shall extend to any allotment made under this section; and the soil therein, if not vested in any private person, may be vested in the churchwardens and overseers, local authority, or other trustees. An application for the purpose of this section may be made by the local authority of any town or the vestry of any parish in, or in the neighbourhood of, which the land proposed to be inclosed is situate, or by any private person or persons being occupiers or owners of land in the neighbourhood of the land proposed to be inclosed. Such application shall be accompanied by an undertaking by the applicants to maintain any path, ride, or drive which may be allotted in pursuance of such application, and any local authority and vestry may give such undertaking. The Provisional Order which provides for the allotment of any path, ride, or drive, shall specify the said application and undertaking, and such undertaking shall, when such Provisional Order is confirmed by Parliament, have effect as if it were enacted by Parliament. Where the commissioners are satisfied that the rents received from the field gardens allotted in pursuance of any Provisional Order will be sufficient to maintain any path, ride, or drive which may be allotted in pursuance of that Order, they may act under this section without requiring any such undertaking as aforesaid.

THE MARQUESS OF SALISBURY

said, this was an extraordinary proposition, for it amounted to no less than this—that paths, rides, and drives for the wealthy should be provided by the lord of the manor and the commoners. After such a proposition he was only astonished at the moderation of the Government. He only wondered that they did not require the lord of the manor and the commoners to contribute a large sum to the Consolidated Fund by way of compensation for inclosure.

LORD REDESDALE

most distinctly objected to the portion of this clause which, among the parties who might make application for an allotment for paths, rides, and drives, included "any private person or persons being occupiers or owners of land in the neighbourhood of the land proposed to be inclosed." He moved the omission of those words.

EARL BEAUCHAMP

said, their Lordships might consent to strain the rights of property when the question was one of providing field gardens and recreation grounds for the humbler classes; but to strain them in order to provide rides and drives for the wealthier classes would throw ridicule on the whole thing.

THE EARL OF KIMBERLEY

said, that as roads were already allotted, he did not see anything absurd in going a step further and allotting rides and drives. A clause containing provision for such allotment was withdrawn when the Bill was in Committee, because in that clause no provision was made for the maintenance of the rides and drives. The clause now provided that the applicants for such allotment must give an undertaking for the maintenance of rides and drives, except in cases where the Commissioners were satisfied that the rents received from field gardens would be sufficient for their maintenance.

THE DUKE OF RICHMOND

said, that under the clause a person who took a house for six weeks in the neighbourhood of the inclosure might apply for an allotment for rides and drives.

THE EARL OF KIMBERLEY

But he must undertake their maintenance.

THE DUKE OF RICHMOND

He may undertake, but where is the guarantee?

EARL GRANVILLE

The Commissioners are to be "satisfied" of that.

On Question, Whether the words proposed to be left out stand part of the proposed new clause?—Their Lordships divided:—Contents 65; Not-Contents 67: Majority 2.

Words struck out.

Clause, as amended, agreed to, and ordered to stand part of the Bill.

Clause 18 (Definition of suburban common).

EARL BEAUCHAMP moved to omit the word "boundaries," in order to insert the words "town-hall, post-office, or parish church, as the Commissioners may in each case appoint." By taking either of those places as the point of measurement, substantial justice would be done, without in any way interfering with the object for which the Bill was proposed.

THE EARL OF MORLEY

admitted that there were difficulties in the case, but believed that the Amendment of the noble Lord would not diminish them.

Amendment negatived.

Amendments made.

Bill to be read 3a on Friday next; and to be printed as amended. (No. 221.)