Lords Sitting of 27 March 1890

LUNACY CONSOLIDATION BILL. (No. 24.)
Returned from the Commons agreed to.
BUSINESS OF THE HOUSE.
Standing Orders Nos. XXI. XXXIX., and XLV., considered (according to order), and dispensed with for this day's sitting.

CONSOLIDATED FUND (No. 1) BILL, ARMY (ANNUAL) BILL.—(No. 48.)
Moved,
"That the Bills have precedence of the Orders of the Day which stand before them."—(The Marquess of Salisbury.)
Motion agreed to; then Bills read 2a (according to order); and, Standing Orders Nos. XXXIX. and XLV. having been dispensed with, Committees negatived: Bills read 3a, and passed.

OPEN SPACES BILL. (No. 41.)

  SECOND READING.
  Order of the Day for the Second Heading, read.
  *THE EARL OF MEATH: My Lords, in asking you to read the Open Spaces Bill a, second time, I desire, very briefly, to explain its objects. The principal object is to improve existing legislation on the subject: also to afford greater facilities for the acquisition and maintenance, by Local Authorities, of open spaces, and the extension to Local Authorities generally, of powers which at present are vested only in certain Authorities, and also to afford greater protection against the illegal enclosure of Metropolitan commons with the view of their being regulated as open spaces. It is only very recently, comparatively speaking, that the public have appreciated the necessity of acquiring open spaces in our large towns. It is not to be wondered at if occasionally it is necessary to revise these Statutes; for it would be very extraordinary if, in such a short space of time as 13 years, we had found

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  out the way at once of bringing forward complete and final legislation on the subject. It is only by experience that we can know whether the present Acts are really available and of full force in regard to the preservation of these open spaces. The existing legislation is as follows:—In 1877 an Act was passed for affording facilities for the enjoyment by the public of open spaces in the Metropolis; and in 1881 an Act was passed to amend that. In 1884 a Bill was brought into Parliament and passed. That Bill dealt exclusively with disused burial grounds, and was for the purpose of preventing the erection of buildings upon them. The last Bill which passed through Parliament was in 1887. This was an Act for the purpose of extending certain provisions of the former Acts and amendments to Sanitary District Authorities throughout England, Wales, and Ireland. The past legislation has proved of the very greatest benefit to Local Authorities and to others who have desired to increase facilities for recreation in our large towns; but it has been found that there are certain defects or omissions in those Acts, and it is the object of this Bill to remove those defects and omissions. Sections 1 and 2 of the Bill are simply formal sections for the simplification of title and the definition of words. Section 3 empowers Trustees to convey open spaces to Local Authorities in cases where there is nothing to prevent them now save the general equitable rule which does not allow Trustees to delegate their office. The former Acts which I have mentioned emancipated Trustees in the far stronger cases of Trusts held under Acts of Parliament; and I do not think your Lordships will object to extend that jurisdiction to those who do not now possess it. The particular case which I have in my mind at this moment with regard to this clause is a Park in Ireland, Victoria Hill Park, Killiney, near Dublin, which was laid out at the time of the Queen's Jubilee, and which has been vested in Trustees; but those Trustees are unable to hand it over to the Local Authority, although I believe the Local Authority in this case is not at all unwilling to maintain it. Sections 4 and 5 of the Bill meet the case of hospital gardens and other grounds which are held for the purpose of charities and which do not come within Sections 2 and 3 of the Act of 1881
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  because surrounding householders have no right of access to them. Under this section the Trustees will have the power of handing over such gardens and grounds to the Local Authority, if at meetings duly held a majority of two-thirds pass such a resolution. Sections 2 and 3 of the Act of 1881 are permissive, and this is, a clause which I believe will meet with your Lordships' approval. Then Clause 6 extends the operation of Section 12 of the Open Spaces Act, 1887, to any Local Authority. At present a Vestry or District Board has no power of purchasing land for open spaces, unless the land comes within the definition of an open space as defined by the Acts, of 1881 and 1887; that is, that the open space is entirely unbuilt upon. In the case of the Pottery Lane Recreation Ground, in the neighbourhood of Netting Hill, the Local Authorities were desirous of acquiring that space, which was practically open, because the houses there had been pulled down; but they were unable to do so, owing to the fact that there were one or two sheds, and I am not quite sure whether there might not have been an old tumble-down house or two on the land. However, as there were bricks and mortar standing on the land, they were unable to acquire it. They would have been unable to obtain possession of it had it not been that a voluntary Association stepped in and enabled the purchase to be made, the land being handed over to the Vestry, who were to recoup the money which they had laid out. But that was a risk which it is hardly fair to expect a voluntary Association to run; for if the Vestry had refused afterwards to hand over the money, this voluntary Association would have found itself hampered with this land which it had bought at a very high price as compared with the funds in its possession. Under Section 7 it is hoped that in future it will be almost impossible for Metropolitan commons to be enclosed, because, under it, no Metropolitan common can be enclosed without a special Act of Parliament A Select Committee of the House of Commons was appointed in 1865 for the purpose of considering the whole question of the enclosure of commons, and that Committee recommended that no enclosure should take place within the Metropolitan area. The result of that Committee was

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  that in 1866 an Act was passed which took away from the Enclosure Commissioners the power of enclosing commons within the Metropolitan area; but it did not interfere with the right of the Lord of the Manor under the Statute of Merton, as old in date as A.D. 1235, to enclose the commons if he had carried out certain conditions mentioned therein. With regard to that right, the Select Committee of 1865 recommended that the Statute should be repealed, as having fulfilled its purpose and been superseded by modern legislation, being specially ill adapted to open spaces near the Metropolis. That it, is no unnecessary clause which is suggested will be apparent when I remind your Lordships of what I have no doubt you are well aware, that in the cases of Epping Forest, and Berkhamsted, Plumstead, Tooting, and Banstead Commons a fight had to be sustained with the Lords of all those Manors; and unless funds had been forthcoming those commons would not have been saved for the benefit of the public at large. If Epping Forest had been lost to the public, I think your Lordships will agree it would have been almost a national calamity; yet if money had not been forthcoming, and in very large sums, owing entirely, I may say, to the munificence of the Corporation of London, it would not have been possible to acquire that magnificent open space, over 5,500 acres in extent, which, I am proud to say, is the largest municipal park in the world. It is, my Lords, to obviate this waste of means, and to prevent the injustice which may be done when funds are not forthcoming to fight the battle, that this section has been drawn up. As regards Section 8, that enables Metropolitan Local Authorities to purchase land, wholly or in part, outside their area. The Local Authorities outside London have already the power by the Public Health Act. Section 12 of the Open Spaces Act, 1887, was evidently copied from the Public Health Act; but the draftsman omitted another clause in the Public Health Act, giving power to buy land in or out of the district. The effect of that omission is this: at this moment there is a certain piece of ground, called North Woolwich Gardens, which is going to be taken over by the London County Council, and the London County Council
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  has to obtain an Act of Parliament in order to acquire power to maintain these grounds; whereas the East Ham Local An thority could have taken over North Woolwich Gardens, which are partly situate within that district, even had they been entirely within the Metropolitan area; but the London County Council cannot take over those Gardens, because a portion of them is in Last Ham. It is for the purpose of getting rid of such anomalies, and for improving legislation with regard to open spaces, not with the view of bringing forward new legislation, but simply to emphasise and carry out in its entirety the spirit of legislation which dictated the Acts of 1877, 1881, and 1887, that I ask your Lordships to read this Bill a second time.
  Moved, "That the Bill be not read 2a"(The Earl of Meath.)
  *LORD DE RAMSEY: My Lords, the Bill to which the noble Earl asks you to give a Second Reading is largely due to his well-known philanthropy, and to his desire to do all the public good he can. The object of the Bill is evidently to extend the scope of those Acts which he has already mentioned. Although I do not know that there is any serious objection to be taken to it as a whole, some of the clauses will, I think, require careful attention, because they trench a good deal upon matters which are under the cognisance of the Charity Commissioners and Board of Agriculture. With regard to what the noble Earl said as to Clause 3, I should be very glad if he could explain a little more clearly—because it will be very important in the view of the Home Office—to what lands he refers. Is no consent to be required, as is necessary by the Act of 1881, and is the conveyance of those lands to be only by gift; or if by sale, what is to become of the purchase-money? Another point which would require further elucidation is Clause 7. This relates, as the noble Lord has already stated, to the power of the Lord of the Manor under the Statute of Merton. As he truly says, that power of Lords of Manors under the Statute of Morton it was suggested by the Select Committee should be abolished; but that suggestion has not yet been adopted by Parliament; and it is now proposed, as I read it, that approval should be required: that is to say, the

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  consent of those two Bodies, the Charity Commissioners and the Board of Agriculture. This clause would deprive Lords of Manors of those powers under the Statute of Merton, of which Parliament has already refused to deprive them, and would compel them in these matters either to deal with the Enclosure Commissioners or to obtain a private Act of Parliament. I do not think that would quite meet the noble Earl's wish, and it would want carefully looking into. That clause is, in my opinion, objection able, and certainly the Home Office would object strongly to that as well as to Clause 7. As regards the Second Reading of the Bill, I know not what view your Lordships may choose to take of it; but if you think it right to pass the Second Reading, I hope, on behalf of the Home Office, the Bill may be referred to one of the Standing Committees.
  THE EARL OF KIMBERLEY: I do not wish to ask the House to refer the Bill to the Standing Committee for General Purposes simply because I happen to be appointed Chairman of that Committee. On that account, perhaps, my interest would be that as few Bills as possible should be referred to it; but it strikes me that this is not a Bill for the Standing Committee on Law, and therefore I would suggest that it should be referred to the Committee for General Purposes.
  THE LORD PRESIDENT OF THE COUNCIL (Viscount CRANBROOK): With regard to referring the Bill to one of the Standing Committees, I would only remind your Lordships that we have heard something stated about the Statute of Merton and interference with manorial rights, both of which seem to me to make this a Bill having reference specially to legal matters.
  THE EARL OF KIMBERLEY: There is something in that certainly, but it is only dealt with, I think, by one single clause. However, that is a point, and I quite agree with the noble Lord that that is a matter which should be inquired into.
  THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY): I think it is undoubtedly better that the Bill should be referred to the Standing Committee on Law, because that will unquestionably be a matter of the
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  greatest conflict, and therefore I think we had better have the opinion of the legal luminaries of the House upon it.
  Bill read 2a(according to order), and committed to the Standing Committee for Bills relating to Law, &c.

PUBLIC TRUSTEE BILL.—(No. 47.)
House in Committee (on Third Recommitment) (according to order): Bill reported without further Amendment; and to be read 3a To-morrow.

IRELAND—SPECIAL COMMISSION ACT, 1888.
EARL GRANVILLE: My Lords, I beg to move the Motion of which I have given notice, with one variation with regard to the names. I omit that of Lord Greville, because I find he has not yet taken the oath—it is not because there is any difference of opinion—and there will be added the name of Lord Coleridge.
Moved,
"That the following Lords be at liberty to sign, before the rising of the House for the Easter Recess, the Protest entered against the Resolution of the House of Friday 21st March, although their Lordships were not present when the question was put:—

M. Breadalbane.

L. Acton.

E. Chesterfield.

L. Aberdare.

E. Ashburnham.

L. Coleridge.

V. Hampden.

L. Hothfield.

L. Camoys.

L. Northbourne.

L. Wentworth.

L. Hobhouse.

L. Vernon.

L. Burton.

L. Thurlow.

L. Hamilton of Dalzell.

L. Leigh.

L. Thring.

—(The Earl Granville).
VISCOUNT CRANBROOK: My Lords, I am not going to take exception to the registering of the "Noes" proposed by the noble Earl without the "Ayes," and by way of what really ought to be an addition, although I am afraid it may give a somewhat false impression in regard to those noble Lords who were ready to vote in their places in the House; but I would beg to call his attention to a Standing Order which is totally contrary to his Motion, and the suspension of which ho ought therefore to have put in the forefront. As I have said, I do not object to his Motion; but for the sake of regularity in the proceedings of the House, I must call his attention to the 35th Standing Order, which is this—

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"Such Lords as shall make protestation or enter their dissents to any votes of this House as they have a right to do without asking leave of the House, either with or without their reasons, shall cause their protestation or dissents to be entered into the Clerk's Book the next sitting-day of this House, before the hour of two o'clock, otherwise the same shall not be entered, and shall sign the same before the rising of the House the same day."
That is an explicit direction under the Standing Orders of the House, and it would, of course, require suspension before the noble Karl could make the Motion which stands in his name.
EARL GRANVILLE: I shall be happy to adopt the course suggested by the noble Viscount, and I beg to move that the Standing Order be now suspended.
*EARL FORTESCUE: I would only say that some years ago, when your Lordships agreed to forego your undoubted right and privilege of giving your votes by proxy, it was thought better and more seemly that votes should only be given when noble Lords had at least heard the Question put. It would be more, desirable, of course, that they should hear the debates. But, really, if noble Lords cannot, or will not, take the trouble—I am not saying that in some cases it may not have been inevitable—of attending here to hear the Question put, it seems to me that this privilege of recording protests in a permanent form on the Journals of this House being exceptional it is only decent that that power which is not enjoyed by the other House of Parliament should at least be confined to those who have heard the Question put and have either recorded their votes or have been present to say "Not-content." I have had now a Parliamentary experience in both Houses of very nearly half a century-not so long as my noble Relative—but it seems rather a strange thing to me in these days to propose this very exceptional way of exercising this very exceptional but ancient privilege of this House.
EARL GRANVILLE: My Lords, I entirely agree with the noble Earl that this is an exceptional matter; but he must have been exceedingly regardless of the business of this House if he has not constantly heard such Motions brought forward. I do not know why he should seek to deprive of the right given by the Standing Order noble
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Lords who were not present in the House when the Question was actually put; but, at all events, whether he is right or I ant right, it is clearly a case in which if he makes that objection he ought to give notice to alter the Standing Orders.
EARL CADOGAN: Perhaps the noble Karl will allow me to point out to him that he is still irregular in moving at once the suspension of a Standing Order, under Standing Order 60, without notice. That Standing Order states that—
"No Motion shall be granted for making any new Standing Order or for dispensing with a Standing Order of this House unless notice shall have been given in the Minutes to consider of the said Motion."
Therefore, I am afraid the noble Earl is hardly in a position to move now.
EARL GRANVILLE: I thought, as we are so near the Recess, your Lordships would not have insisted upon my giving notice, but if it be insisted upon I shall be very glad to do so.
THE EARL OF FEVERSHAM: I think the Motion of the noble Earl opposite is rather inconsistent with the practice which has been stated with regard to proxies. We have altered the rule for voting by proxy, and, therefore, considering that some of the noble Lords named were altogether absent from the debate, and others did not think it worth while to remain to the end, I cannot see, I must say, what importance the noble Earl can attach to a Protest signed under those circumstances. I cannot think that it will add either to the dignity or the reputation of this House to allow it.
*LORD SANDHURST: On behalf of the noble Earl I beg to give notice that he will move to suspend the Standing Order to-morrow to allow him to make the Motion which stood in his name to-day with the addition of the name of Lord Coleridge.
Motion (by leave of the House) withdrawn.
House adjourned at Five o'clock, till to-morrow, a quarter past Ten o'clock.