HL Deb 18 November 1920 vol 42 cc337-82

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.— (Viscount Peel.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF DONOUGH MORE in the Chair.]

Clause 1

Power to dispose of land free from restrictive covenant.

1.— (1) Where land which, or an interest in which has been acquired under the Defence of the Realm (Acquisition of Land) Act, 1916 (hereinafter referred to as the principal Act), was immediately before its acquisition subject to a restrictive covenant, and the land or interest therein is disposed of in pursuance of the powers conferred by section five of that Act, it may be disposed of free from the restriction imposed by the covenant, and shall be deemed to have been so disposed of, if expressed to be disposed of in pursuance of the powers conferred by the principal Act and this Act but not otherwise.

(2) Where any such land or interest is disposed of free from such restriction, no person shall have the right of enforcing the covenant against the person to whom the land or interest is disposed of or his successors in title, but if at any time after such disposition any person who, but for this section, would have had a right to enforce the covenant, establishes such right, there shall be paid to him compensation to be determined in manner provided by the Lands Clauses Act as modified by the principal Act and the Acquisition of Land (Assessment of Compensation) Act, 1919, with respect to interests in lands which have been omitted to be purchased, and upon payment of such compensation the right shall, as against him and all persons deriving title through him be absolutely discharged:

Provided that in assessing the compensation, the official arbitrator shall taken into consideration any compensation which may have been paid or be payable in respect of the covenant under section four of the principal Act.

(3) In the application of this section to Scotland "restrictive covenant" shall mean any obligation imposed by way of real burden or reservation or condition running with or affecting the land, whereby any restriction on the alienation or transfer of possession of the land, or on the use or enjoyment thereof, is effected.

THE EARL OF MALMESBURY moved, in subsection (1), after "restrictive covenant," to insert "which before the fourth day of November nineteen hundred and twenty had lawfully been contravened in pursuance of the powers conferred by section four of that Act."

The noble Earl said: Unfortunately I was unable to be present on Monday, and therefore I am at a disadvantage in not having heard the speech delivered by the noble Viscount the Under-Secretary of State for War, but I have read the OFFICIAL REPORT, and if the noble Viscount will allow me, to say so I hope the motive in which I move the Amendment will be taken to be the same as that in which he moved the Bill in your Lordships' House.

With regard to the Amendment standing in my name, I propose to insert in Clause 1 a qualifying expression which will strictly limit the application of the Bill to such restrictive covenants as have been contravened previous to the 4th of November last. My object in doing that is this. During the war the Government had for special reasons to break restrictive covenants governing the occupation of land. But I suggest that there is some uncertainty in the wording of this clause, because as we read it we see that the Government shall have power to break all the restrictive covenants before they dispose of the land or they shall continue to break the restrictive covenants from now on. I am sure that was not the intention of your Lordships' House the other day. If this clause is passed without the Amendment it will give the Government unlimited control over the lands which they have acquired solely for the purpose of the war.

The Amendment would allow the Government to be free to dispose of lands without regard to restrictive covenants which had been contravened during the Government user and at any time before the date of the introduction of the Bill. Without such an Amendment you will be inflicting a very great hardship on the landowner himself and upon neighbouring owners, and in this respect it is quite impossible to measure the damage inflicted in terms of money. It would establish a precedent, and it would also give another example as to the unimportance attached to the keeping of contracts. After all, the landlord himself was bound and is bound to maintain those contracts and those covenants, not-withstanding the fact that he himself might very often have added considerably to the value of his land by overriding those covenants. I have known cases in which landowners could have obtained a very much larger sum for their land had they been able to override certain covenants. They have not been able to do so, and therefore I submit that in dealing with Clause 1 you should insert in the Bill such an Amendment as I have suggested, or that the noble Viscount should give an undertaking that some limit would be imposed on the manner in which the Government can deal with this land, now that the war is over.

Amendment moved— Page 1, line 9, after ("covenant") insert ("Which before the fourth day of November nineteen hundred and twenty had lawfully been contravened in pursuance of the powers conferred by section four of that Act").— (The Earl of Malmesbury.)


I should like to call your Lordships' attention, first of all, to the object with which this Bill was introduced. It was introduced for the purpose of quietening certain doubts which have arisen, sonic of which, to my mind, need never have arisen, as to the interpretation of the Act of 1916, and of settling points which, to my mind, were perfectly plain, but which the ingenious mind of Lincoln's Inn seemed to think possessed a possibility of being interpreted in some other way than what seemed to me to be the perfectly plain, ordinary and common sense way.

The great object of this Bill, therefore, is to quieten doubts. And why to quieten doubts? In order that the Government may be able to dispose of the lands that they have taken and of the buildings they have put up— buildings of great value and erected at the cost of the taxpayer—that they may be able to dispose of them (subject, of course, to justice to private rights) to the best advantage of the taxpayers. I say this particularly because the noble Earl in one or two general observations was alluding only to the question of the rights of landowners. The rights of landowners must, of course, be properly observed, like those of any other class. But I am asking your Lordships not merely to confine your attention solely to the advantage which the landowner may get, but to the advantage which the State and the taxpayer may get, and to the enormous losses which the taxpayer must suffer if certain timings are not done in this Bill. Your Lordships have on various occasions very vigorously asserted your determination that money should not be wasted; and in looking at this Bill I ask your Lordships to remember that attitude which you took up, and to remember that large sums of money are involved in this Bill, and that it is not merely a question of the meticulous interpretation of certain points of law.

I will say at once that certain hardships have been inflicted— part of the necessary hardships of the war—on those who possess this land. Because it may seem very hard, in my opinion, that land should be taken for the purposes of the war, and that then, when the landowner may hope to have his land back, he should find that a building worth half-a-million is put upon it, and he cannot have his land back because the Government say "We are now going to sell your land, as that is the only way in which we can reap the advantage of the great sums spent upon it." I agree. I would only ask your Lordships, in discussing this and other Amendments, to weigh one consideration against the other: on the one hand the hardship to the owner, on the other the loss to the State and the taxpayer. The noble Earl said that there were certain damages inflicted by the taking of land which could not be assessed in money. Everybody would agree to that, but that is rather a general objection to the taking of any land for any public purpose. We have all got attached to our own land, and it has a certain sentimental value, which, of course, cannot be assessed in money.

The specific point to which the noble Earl Las addressed himself is that of restrictive covenants, which have been infringed during the occupation of the land, and which, now that the land is disposed of, should, it is suggested, not revive, or, if they do revive, the landowner should be compensated. The noble Earl would restrict the abolition of these particular covenants to those which have been lawfully infringed before November 4 and in pursuance of powers conferred under Section 4 of the principal Act. I am afraid it would be quite impossible to accept that Amendment, and (for one reason that must be very plain to your Lordships) because a great many of these powers were not taken under the Act of 1916 at all but under the Defence of the Realm Act. Therefore, if you confine it, as the noble Earl wishes to do, to land bought under the principal Act, it would apply only where the land has been acquired and there has 'been Government user of tie land. But there are two classes of cases excluded, to which the Amendment of the noble Earl would not apply at all, that is, where the land has been bought and net used by the Government—that is to say where it has been acquired for the purpose of re-sale; and the second where land was taken and used under the Defence of the Realm Regulations. These cases are left out, and therefore I would urge the noble Earl not to press the Amendment.

I am going, however, to make a suggestion to the noble Earl and I hope it may be acceptable to him. There are, as he knows, a great many varieties of restrictive covenants, and I would be prepared, if he would accept the suggestion, that we should limit the covenants which are to be abolished under this clause to those restrictive covenants which have been already lawfully infringed prior to the noble Earl's date or to any particular date that is fixed upon. That would perhaps go a long way to meet the noble Earl, although it would not abolish all restrictive covenants, but only those which have been infringed properly when the land was taken by the Government, either under the Defence of the Realm Regulations or under Section 4. I should be glad if some proposal of that kind commended itself to the noble Earl, but, anyhow, it is impossible to accept the present Amendment.


It is disappointing to hear from the noble Viscount that on the discussion of the first of the Amendments put down lie should consider it necessary, first of all, to renew the same intransigent attitude with regard to the whole Bill which, I venture to think, characterised his speech on the Second Reading; and, secondly, to oppose this particular Amendment, which I must say, when I considered it, seemed to me so natural and obvious that I too optimistically hoped that the Government would accept it. Nor do I understand the alternative which the noble Viscount suggests, and therefore, being unable to understand it, I forbear to discuss it.

I should like, however, to make it quite clear how the noble Earl's Amendment strikes me. The Government is asking by this Bill to be allowed to dispose of land discharged from all restrictive covenants even although while they were in the occupation of the land themselves they have not found it necessary to break any of these covenants. That is to say, having acquired land for the purposes of the war, and found that the use of the land was quite consistent with the observance of the restrictive covenants in existence, they want, nevertheless, to be in a position to say to a purchaser, "We are able to sell you something with no restrictive covenants on it at all." In other words, not having had to break the covenants for the purpose of waging the war, they want to be able to get rid of the covenants altogether for the purpose of making a better bargain.

It is quite true that under the other part of the clause the owner who thus loses the benefit of the covenants is entitled to get compensation in the manner provided by the Bill. Any one who has examined the Schedule of the principal Act, which applies to this manner of getting compensation, will see that it is less favourable to owners than the Lands Clauses Act would have been in cases to which they apply. I am not making any complaint or grievance, and the Amendment is not moved with the object of increasing the compensation that landowners are to get. The noble Viscount will do well to observe that the tenor of the Amendments is not for the purpose of getting bigger compensation. Under Clause 2 the landlord would be told that he can get his money as he did under the Lands Clauses Act, that he can get money for the extinction of his covenants, and then the Government will be free to make a profit out of the transaction by going to a purchaser and saying that they have land free from restrictive covenants altogether. That is not a transaction connected with the waging of the war. It is a transaction connected with making a remarkably good deal after the conclusion of peace, and the defence of the Realm is not a fair description of a process of that kind. The noble Viscount will have an opportunity upon Report, if these words should be inserted, of moving any further Amendment that he and his advisers may think of in the meantime, but as far as I am concerned it appears to me that your Lordships will be well advised in giving hearty support to the Amendment.


May I ask the noble Viscount one question in reference to the speech he made? I do not wish to controvert in any way the general principles he laid down, but he said that the object of the provision we are now dealing with was to quiet doubts; doubts which have their origin in Lincoln's Inn, and which he as a man of common sense did not appreciate.


I did not say that I was a man of common sense.


I am fairly familiar with Compensation Statutes, and I do not know of any one which allows a purchaser who has bought land subject to restrictive covenants to make a title from himself as though these restrictive covenants had been bought and paid for; in fact, to make a title for a subject-matter of which he is not possessed. That is really the object of Clause 1. I will not go into the actual terms of the Amendment. I am not sure whether the proposal of the noble Earl or of the noble Viscount would be the more effective as I have not considered the words sufficiently, but I should like to know what doubt he is quieting. I am quite unaware of any such principle in compensation law as seems to be suggested here.


I do not know whether the noble Viscount will see his way to make some concession.


I have offered one.


The noble Viscount offered a concession but, as an exceptional case, he failed to make it quite clear what exactly the concession was. If I alone had failed to understand it I should have thought nothing of it, because I do not understand matters of law, but both Lord Sumner and Lord Parmoor failed to understand what the concession was, and it is not therefore my own comprehension that is at fault. If it is merely a question that the words do not go far enough (that is one of the noble Viscount's objections) or that other words would be better, it would be quite easy at a further stage to put it right, and I am sure he would have the co-operation of all your Lordships in putting the Amendment into the best possible form. If it is only a question of form I do not think we should hesitate. All we can do is to ask the Government to accept the Amendment. It has been carefully drafted by a competent person, and we feel that in accepting it no mistake will be made, and at a further stage the Government will be able to extend or modify it as they think fit.


The noble and learned Lord on the cross-benches said he did not understand the Amendment that I suggested. No doubt it was my fault that he did not give a fair account of what the Government intended to do. He suggested that the aim of the Government was to make as good a bargain as they could, to make a better bargain than they ought to make. No one would object to the Government making a good bargain. But he seems to think, and it is a misappre- hension I should like to deal with at once, that by the abolition of some of these restrictive covenants the Government would get a better price for the buildings they have to sell.


May I interrupt the noble Viscount? If advantage is taken of the abolition of restrictive covenants it must come from someone. Who is robbed under the Government's proposal? I could, of course, easily put a case.


I must object to the word "robbed." It is quite clear in the clause that full compensation is payable. Does the noble Marquess mean that if a man gets full compensation he is "robbed"?


If there is not full compensation.


If there is not full compensation I agree, but t he compensation under the Lands Clauses Act is generally considered to be good compensation. But do not let us get on to side issues as to whether the compensation is enough. I am dealing with the point as to how far the abolition of these particular conditions will affect the deal of the Government. That is to say, is it only a question of the Government making a better bargain or not? It is nothing of the kind. It is a question of the Government being able to make a bargain at all. Take a case that arises. You have a large factory worth half a million pounds put down on ground which is subject to a restrictive covenant that you must not put houses within a certain area of more than a certain size. Unless that restrictive covenant it is abolished it is not a question of getting a good price; it means that you will not get a price at all. It means that one of two things will happen. Either that this large and valuable factory will go back to the landowner, who did not pay for it and did not contribute except as a taxpayer one penny towards the cost, or that the Government will have to pull the whole thing down. It is not a question of the Government getting more or less; it is a question of the Government not getting anything. I must really differ as to it being a question of the Government getting a little more or less.

The noble Lord made another point, as to the infringement of these covenants.

Noble Lords are aware that it is only when the titles are investigated that the question of these covenants is thoroughly known. During the war and the disturbances of the war people were not going to inquire very carefully into what the particular restrictive covenants were that were being infringed. They have been infringed all the time, although possibly they have not been knowingly infringed. When the question comes to be investigated it is then found that these are restrictive covenants, and that they have to be dealt with also on a basis of fair compensation. The point of doubt which was mentioned by the other noble and learned Lord as having arisen was that they understood when this land was disposed of in this way that these restrictive covenants did not revive. They were under that impression on the construction of the Act, but they are now advised that they very probably do. As to the other point, I think the noble Marquess said I had not explained carefully what was suggested.


Would the noble Viscount again state his suggested words?


My suggested words are drawn out at very great length, and I do not think I could give the whole of them. I will tell you generally that it is suggested that only those restrictive covenants which had been infringed before a certain date should be taken away, compensation of course being given for them. As the noble and learned Lord knows very well, there are many classes of restrictive covenants. The classes of restrictive covenants which had not been infringed should be left as they were, and only those that had actually been infringed should disappear, and, if necessary, compensation paid. That is the general line of my Amendment. The Amendment itself has been drafted, but it would be very difficult for your Lordships to follow if it were read out, so that I propose to put it down. That is the general line followed.

On Question, whether the words proposed to be inserted shall stand part of the clause?—

Their Lordships divided: Contents, 47; Not-Contents, 30.

Portland, D. Chaplin, V. Lawrence, L.
Somerset, D. Finlay, V. Monteagle, L. (M. Sligo.)
Sutherland, D. Hutchinson, V. (E. Donoughmore.) Muir Mackenzie, L.
Oranmore and Browne, L.
Linlithgow, M. Parmoor, L.
Salisbury, M. Ampthill, Queenborough, L.
Askwith, L. Ranfurly, L.(E. Ranfurly.)
Avebury, L. Rotherham, L.
Dartmouth, E. Barrymore, L. Sackville, L.
Doncaster, E. (D. Buccleuch and Queensberry.) Clifford of Chudleigh, L. St. Levan, L.
Clinton, L. Saltoun, L.
Grey, E. de Mauley, L. Strabolgi, L.
Lindsay, E. Ebury, L. Strachie, L.
Malmesbury, E. [Teller.] Elgin, L. (E. Elgin and Kincardine.) Sumner, L.
Midleton, E. Sydenham, L.
Roden, E. Erskine, L. [Teller.] Wavertree, L.
Selborne, E. Hindlip, L. Wrenbury, L.
Wicklow, E. Kintore, L. (E. Kintore) Wyfold, L.
Birkenhead, L. (L. Chancellor.) Reading, E. Ernle, L.
Vane, E. (M. Londonderry.) Hylton, L.
Ancaster, E. Islington, L.
Bradford, E. Sandhurst, V.(L. Chamberlain.) Lee of Fareham, L.
Chesterfield, E. Devonport, V. Ormonde, L. (M. Ormonde.)
Craven, E. Peel, V. Ranksborough, L.
Eldon, E. Ritchie of Dundee, L.
Lucan, E. Annesley, L. (V. Valentia.) Somerleyton, L. [Teller.]
Lytton, E. Ashton of Hyde, L. Stanmore, L. [Teller.]
Onslow, E. Clwyd, L. Wemyss, L. (E. Wemyss.)
Pembroke and Montgomery, E. Colebrooke, L. Wigan, L. (E. Crawford.)

Resolved in the affirmative, and Amendment agreed to accordingly.

THE EARL OF ANCASTER moved, in subsection (2), after "establishes such right," to insert "in case of dispute to the satisfaction of the Railway and Canal Commission." The noble Earl said: The object of this Amendment is to try to make the clause clearer. A few minutes ago the noble Viscount said that the chief object of the Bill was to quiet doubts, and as the clause reads it is not clear to me, in the case of a person who ought to receive compensation for being deprived of certain rights in connection with land, to what authority he should apply to prove his case. By my Amendment he would have the right to enforce the covenant and in case of dispute to establish his case to the satisfaction of the Railway and Canal Commission. That Commission is the body which has dealt with these cases in the past under the Act of 1916, and I ant informed has given universal satisfaction by its decisions. It may be urged against the Amendment that the aggrieved party who sought to establish his right would go to the Courts, but I am inclined to think that under the clause as it stands some Government Department would be possibly concerned as to admitting whether the person had any right to claim or not. If the aggrieved party said, "No, I cannot accept your decision; I have suffered loss and ought to have compensation," he would be put to the expense and delay of going to the Courts. I am informed that the Railway and Canal Commission would be the better body to deal with the question, and I think my Amendment should be inserted to effect what the noble Viscount desires— to quiet doubts and make the question easier to understand.

Amendment moved— Page 1, line 21, after ("right") insert ("in case of dispute to the satisfaction of the Railway and Canal Commission").— (The Earl of Ancaster.)


The noble Earl raises as a question of doubt a point which I confess had also occurred to me when I read the Bill. But I have taken advice on the subject, and am told that it is perfectly clear that the clause as it stands would mean that the individuals concerned would have their ordinary rights to go to the ordinary Courts to get their disputes settled. If the words proposed were put in I understand they would take away that right from the individual, who would be compelled to go to the Railway and Canal Commission.


He has done that under the 1916 Act, I understand.


I would suggest to the noble Earl that it would be better that the individual should have the right of going to the ordinary Courts, because, after all, these questions of restrictive covenants are very often matters concerning real property and law, and would probably be better decided by those Courts which are always dealing with these rather difficult questions. He knows the composition of the Railway and Canal Commission, and though there is a Judge sitting upon it I do not think the members are so versed as the ordinary Courts in these particular questions. I would ask whether the noble Earl does not think it unwise to take away the right of going to the ordinary Courts.


I am not well versed in reading an Act of Parliament, but I suppose that there is no doubt he would have the right to appeal to the Courts in question, because if it were left to some Government Department to decide whether he had the right it would be a very different question. I think some words ought to be put in to show that the individual has the right of appeal to some body, and that the question is not settled by a Government Department.


I quite agree that if there is any doubt it ought to be settled. I have made inquiries and am informed that there is no doubt at all but in order to meet the noble Earl's suggestion, I will again make careful inquiries and, if necessary, produce some Amendment on the Report stage.


Then I withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD SUMNER moved, at the end of subsection (2), to insert "Provided further that this section shall not apply to any restrictive covenant entered into for the protection and maintenance of any building scheme or for the preservation of the amenities of any dwelling-house in the occupation of a person entitled to enforce such covenant."

The noble and learned Lord said: The object of the Amendment is, if not to quiet doubts, at any rate to remove disquietude. Your Lordships will see that it deals with a quite limited class of persons whom I want to except out of the clause altogether. I think there is a distinct class of persons to whom restrictive covenants are not a matter of money but go to the whole root of their comfort and satisfaction in life, and those persons ought not to be made the victims of this Procrustean clause which the noble Viscount proposes. It is familiar to all of us that land is laid out on a large scale for building purposes, some of those building schemes having been already carried out; and some of them being in process of completion, with probably many years before they will be complete, and the amenity, peace, quiet, and comfort of those who take part in that scheme by purchasing or leasing houses entirely depends on a system of mutual restrictive covenants, whereby each person covenants with the landlord not to use the building except for a private dwelling-house, not to do this and not to do that— your Lordships are familiar with the kind of covenant— and upon the maintenance of that entirety of covenants the whole of the separately interested persons are protected for years in the enjoyment of that which was originally erected.

An extreme instance—I do not suggest that it is one that will arise under the noble Viscount's Bill— is that of a West-end square in which one house has been acquired for the purpose of some Government Department and then sold under this Bill, free from all restrictive covenants which bind the other people owning houses in the square; and thereupon you would have, at the corner of the square, an owner who was entitled to erect a factory if he chose, there being no restrictive covenants binding upon him. It is plain that no money could be compensation for a case like that; certainly no money paid to the owner of the particular land which is having its restrictive covenant swept away. What is to happen to the other people who rely, as the general protection for their amenities, upon the entire system of covenants being maintained on the entire building scheme? There is a similar class in the case of persons whose dwelling-houses are protected by similar restrictive covenants, who have, for example, sold off portions of their parks for building purposes but have taken restrictive covenants from the persons from whom the land is sold, and the amenities of whose house and its surroundings entirely depend upon the maintenance of those covenants.

Your Lordships will notice that I have not extended this except to the case of a person who is in occupation, so that it may be truly said that it is for the protection of an occupying owner in preserving those amenities without which the house may be of very little value to him. I have no doubt there may be very few such cases in fact. We have not the advantage of knowing, and I do not invite the noble Viscount to tell us the particular negotiations or schemes he has in hand, for that would be giving away the essence of his position. Therefore I cannot tell, though he may be able to tell, to what extent such a case is a real case. But if there be very few such cases I submit that the noble Viscount can have no difficulty in accepting the Amendment.

On the other hand, if there are many such cases— and I am sure there well may be such cases—what a grave injustice is inflicted upon people whose property, in which they were living and designed to continue to live, becomes converted into property in the neighbourhood of an eligible factory or something of that kind. You are then told that they must be content with the money value got under the compensation clause. But there are some things in this country that are not for sale, and among them are the amenities of our private houses. I think that whatever sacrifices were rightly demanded of people in war, this is not a case in which sacrifices of that kind can be demanded in time of peace.

Amendment moved— Page 2, line 6, after ("Act") insert ("Provided further that this section shall not apply to any restrictive covenant entered into for the protection and maintenance of any building scheme or for the preservation of the amenities of any dwelling-house in the occupation of a person entitled to enforce such covenant").—(Lord Sumner.)


The noble and learned Lord is dealing to some extent with the question that we have already discussed—that is to say, the restrictive covenants connected with building claims, and also affecting the amenity of houses. In regard to the amenity of houses, I would remind your Lordships that gardens and parks were exempted from the principal Act, so that that matter would not come in at all. Here it is really a question of the balance of advantage. The noble and learned Lord said that he did not invite me to give particulars, and one does not give particulars of definite names and places. But I have here a number of cases where, if the Amendment were carried, the result undoubtedly would be that the factory, which had been erected contrary to the restrictive covenant stating that only houses of a certain size or of a residential character were to be erected, would have to be pulled down. It is for your Lordships to decide which you will do. It is not a question of getting something for the factory, but of pulling it down and getting nothing. The loss will fall entirely on the taxpayer.

I have a number of cases which illustrate clearly what will happen. There is the case of land occupied by a factory on part of an estate which had been devoted to a housing scheme. There are possibly 200 houses on the estate, and many of the occupiers of those houses object to the retention of the factory. It is alleged that the use of the land is restricted by covenants permitting it to be used only for housing purposes. If those covenants were insisted upon the factory would have no saleable value, because it would have to be pulled down. That is a typical case, of which I have a number. The issue is clearly this. Are you to leave the factory there and compensate the owners of the houses, or are you not to compensate? Are you to say, "The people who would buy the factory shall not do so, and the people who would be employed in it shall not be employed there; it does not matter whether there is unemployment or whether there is not; it does not matter whether there is a loss to the State or whether there is not." That is the question to be decided.

I have another instance which is of a somewhat different kind. In this case the vendors to the Government were under restrictive covenants to preserve the existing character of the estate. The vendors to the Government released the land from these covenants so far as they are concerned, but there are probably owners or residents who are entitled to the benefits of restrictive covenants and who would raise objections to the continuance of the factory there. Here, as your Lordships see, was a case where the vendors released their rights to compensation. Your Lordships will realise that out of forty people there might be thirty-nine who would not object, to the continuance of the factory, but the fortieth might be a cantankerous person who would insist on his right, and have the building pulled down. That is the issue, and on behalf of the Department which I represent I ask your Lordships not to accept the Amendment of the noble and learned Lord.

If the Amendment is accepted, it is obvious what will be done. The factories will have to be pulled down, and there will be great waste of money. On the other hand, if the factories remain it would be hard upon a certain number of persons who will lose the advantage of the amenities of the neighbourhood, but they will be compensated, as far as compensation can be given in money. I would point out that if a great deal of damage were done to the character of a neighbourhood by the existence of a factory the compensation to be paid would be so high that it would not be worth the while of the State to retain the factory, for it would be cheaper to pull it down than to pay the compensation. That is how the matter stands, and I must leave it entirely to your Lordships.


I do not for a moment suggest that the noble Viscount has said what is unreasonable. One would not expect him to rise unless he had something to say in favour of his attitude. But it is not sufficient to put the hard case of the State. The Government must meet the hard cases which were put by the noble and learned Lord on the cross-benches. It is quite clear that the noble Viscount has not attempted to meet them. He really has said to your Lordships, There are certain cases where a factory has been erected, and where under the terms of the noble and learned Lord's Amendment it would have to be pulled down, and we ought to protect that case." I think a great many of your Lordships might have listened very sympathetically to the noble Viscount's plea and have considered that there might he a reason for some modification in the words of the clause, but as the Government Bill stands, and as the noble and learned Lord has explained it, hardships may occur which are not at all necessary, and which are only insisted upon by the Government in order to make their property of a little greater value.


Not value.


In some cases it may be so, but not in all cases. Let me put the case of an ordinary building estate. A man before the war is developing a building estate. He has erected upon part of it a good class of residential house. Then comes the war and the Government say, "We want this vacant land." Quite right. No one in your Lordships' House or anywhere else would stand in the way of the interests of the country. Everything was put at the disposal of the Government. Nothing could exceed the patriotism with which owners put everything in the way of the Government when the critical moment came. They said, "It may be that we are going to lose money or lose conveniences, but everything shall he put in the hands of the Government in order to defeat the enemy." Those persons who acted in that patriotic way are entitled to the most careful consideration afterwards. There should be no question of the Government making a little more money out of the concession. The question of a little more or a little less ought not to be taken into consideration at all in face of the patriotic action of these people. The Government ought to be willing to make every possible concession, short of what is obviously unreasonable, in order to preserve these rights.

But let me return to the building estate. The vacant land is taken by the Government for the war. The war comes to an end and the Government say, "We are not going to put in any restrictive covenants in respect of this estate. We are going to put up rows of shops." That of course would destroy the residential value of the estate. But it is not altogether a question of value. There are amenities which cannot be calculated in the form of money.


I do not wish the idea to go forth that this is a question of putting up rows of shops. It is a question of selling factories.


Not necessarily factories. The Government may well go from restrictive covenants, and the result might be that shops could be erected upon laud which formerly was subject to restrictive covenants, and upon which only residential houses could be erected. That is the effect of the Govern ment clause, and that is what we protest against. It is not sufficient for the noble Viscount to throw his factories at me. He must meet the difficulties which arise under the clause in all respects. The noble and learned Lord on the crossbenches gave the case of a London square, which was an extreme case. He put it that one house might be taken for a Government office during the war and that house might be used afterwards, because it could be sold to greater advantage, to destroy the amenity of the whole square against the restrictive covenant which was on the land. The noble Viscount must meet this case if he desires to convince your Lordships. He says there are certain cases where it would be eminently unreasonable to ask the Government to have a factory pulled down because there are restrictive covenants on the land, and that is a matter which I am quite sure your Lordships will sympathetically consider. But he has not attempted to meet the hard cases that we have put to him, such as that which will befall the man who has acted with the greatest patriotism and whose rights ought to be most carefully considered by the Government. They ought not to come to us, if I may respectfully say so, and say that the Government is entitled to make as much money as they can out of a bargain of that kind. They ougth to say, "In those circumstances the restrictive covenants ought to be protected, and we will draw our words so as to protect them."


The way in which the noble Viscount has met this Amendment—though I admit that he put up a very game fight for the Bill—is, I regret to say, one which impresses me very unfavourably with the whole attitude of the Government in proposing this measure at all. He put the case of a number of persons entitled to rely upon restrictive covenants who had waived their right, and then he spoke of the one outstanding person as a cantankerous person who stood upon his rights. What are his rights for? What are legal rights for except that one may stand upon them, and to say that it is cantankerous to do so is to beg the question. It is a matter for the owner of the rights to consider.

Then the noble Viscount says that he must leave it to the House from the point of view that it is a balance of advantage and disadvantage between the State and the individual. Underlying that is this proposition, that so glorified is the State nowadays in its collective capacity that if it is more convenient for the State in time of peace to take away the property of private individuals who do not want to part with it, it must be done. I recognise, we all recognise that principle in time of crisis, but we are supposed to have won a victory and to be engaged in liquidating the remains of a successful war. Is it to be put to your Lordships as a proposition that you are asked to act upon, that as it is much more convenient for the State to sell its factories to the disadvantage of people thereabouts who are merely going to lose their houses which they have lived in all their lives, the State must triumph and the individual must decay? I trust such a principle will not be laid down by your Lordships, and willingly as we should have accepted any practicable provisions to deal with actual cases, if we are to be faced with a general principle of that kind I fear that nothing remains for me but to stand by my convictions.


It appears to me that the Government is asking for a wholesale privilege that would never be granted to a private individual. If in the exceptional cases which were referred to by the noble Lord opposite a private individual would have to bring in a private Bill, why should not the Government bring in a special Bill applying to special circumstances, and not ask the House to sanction by Statute a wholesale alteration of conditions because exceptional cases might arise. On that ground I feel inclined to support the Amendment.


I regret that the noble Marquess should think I am too unyielding on a point of this kind, but the fact is it is an extremely difficult thing to establish any principle (and it is very difficult to deal with these things except on principle) by which you can divide the harder cases from the easier cases. The noble and learned Lord spoke of specific cases. We can hardly have special laws to deal with special cases; they must, I think, be dealt with on principle. I admit that there might be hard cases, such, for instance, as a factory that had been put down hastily in the course of the war and may have infringed these restrictive covenants, and where it may be something of a hardship, no doubt. Although I must admit that these infringements are compensated, in the sort of extreme cases the noble Marquess takes tie compensation would be so high that obviously it would not be to the advantage of the State to insist upon them; it would be better perhaps that the factories should be pulled down. It is a very difficult issue, and I will try between now nod the Report stage to see whether there is any way in which to draw a distinction in such cases. I have already gone into it fully, and I think it is a very difficult thing to do. I think the only possibility would be to have some kind of independent tribunal—


Hear, hear.


— which might say when cases were so hard and the damage was so considerable that it would be better that the State should lose its factories, because that is what it comes to, and that the private owners should have their special advantages. I could not, of course, accept the Amendment proposed by the noble and learned Lord, which would sweep away so many cases and inflict a very considerable loss on the taxpayer.


I think my noble friend has put his finger on the

Resolved in the affirmative, and Amendment agreed to accordingly.

spot. The fact is that there is no reason why we should trust Government Departments in this matter. Government Departments have not been famous for the consideration or tact with which they have exercised their powers during the war, and there have been some notorious cases in which the Courts have found them wrong and entirely reversed all the decisions given by them acting under the advice of the Law Officers of the Crown. Therefore I think if my noble friend can find some other tribunal which may be more impartial than a Government Department— which, after all, is a principal in the matter— it would go a long way towards satisfying our difficulty.


The noble Earl must not lead the House to suppose that the Government Department settles these questions of compensation. That is done by a Court quite independent of the Government Department. But I appreciate the point.

On Question, whether the words proposed to be inserted shall stand part of the clause?

Their Lordships divided:— Contents, 38; Not-Contents, 30.

Somerset, D. Finlay, V. Erskine, L. [Teller.]
Sutherland, D. Hutchinson, V. (E. Donoughmore.) Hindlip, L.
Linlithgow, M Kintore, L. (E. Kintore.)
Salisbury, M. Lawrence, L.
Ampthill, L. Monteagle, L.(M. Sligo.)
Dartmouth, E. Askwith, L. Parmoor, L.
Doncaster, E.(D. Buccleuch and Queensberry.) Avebury, L. Ranfurly, L.(E. Ranfurly.)
Barrymore, L. St. Leven, L.
Grey, E. Clifford of Chudleigh, L. Strachie, L.
Lindsay, E. Clinton, L. Sumner, L. [Teller.]
Malmesbury, E. Cottesloe, L. Sydenham, L.
Roden, E. de Mauley, L. Wavertree, L.
Selborne, E. Desart, L. (E. Desart.) Wrenbury, L.
Wicklow, E. Ebury, L. Wynford, L.
Birkenhead, L. (L. Chancellor.) Pembroke and Montgomery, E. Colebrooke, L.
Reading, E. Hylton, L.
Ancaster, E. Vane, E. (M. Londonderry.) Lee of Fareham, L.
Bradford, E. Muir Mackenzie, L.
Chesterfield, E. Sandhurst, V. (L. Chamberlain.) Ranksborough, L.
Craven, E. Devonport, V. Ritchie of Dundee, L.
Curzon of Kedleston, E. Peel, V. Rotherham, L.
Eldon, E. Somerleyton, L. [Teller.]
Lucan, E. Annesley, L. (V. Va entia.) Stanmore, L. [Teller.]
Lytton, E. Ashton of Hyde, L. Wemyss, L. (E. Wemyss.)
Onslow, E. Clwyd, L. Wigan, L. (E. Crawford.)

Clause 2:

Provisions as to rights of pre-emption.

2.—(1) The right of pre-emption conferred by section five of the principal Act on any person other than a person entitled to the lands from which the land proposed to be sold was originally severed shall cease to have effect, and accordingly in subsection (3) of that section the words from "or if such person refuse" to the end of that subsection shall be repealed.

(2) The right of pre-emption conferred by that section on a person entitled to the lands from which the land proposed to be sold was originally severed shall be exerciseable only if the person entitled to those lands was entitled thereto at the time of the original severance or has become entitled thereto by devolution under a settlement or testamentary disposition or an intestacy.

(3) Where the land from which land acquired under the principal Act was severed is settled land within the meaning of the Settled Land Acts, 1882 to 1890, the tenant for life, or person having the powers of a tenant fur life under those Acts with respect to that land, shall, for the purposes of section five of the principal Act and this section, be deemed to be, and always to have been, the person entitled to the settled land.

(4) The person by whom the right of preemption conferred by the said section five as amended by this section is or would for the time being be exerciseable in respect of any land if a Government department were offering that land for sale shall have power at any time to release that right so as to discharge in perpetuity the land or any part thereof to which the release relates from all such right of pre-emption.

THE DUKE OF BUCCLEUCH moved to leave out subsection (1). The noble Duke said: This subsection is apparently intended to do away with any rights of preemption enjoyed by those who have land contiguous to lands acquired by a Government Department. In the Act of 1916 the procedure is apparently based on the ordinary procedure in those cases, and on the provisions of the Lands Clauses Act dealing with superfluous land. I have no doubt it was carefully considered at the time. It is a procedure which has generally been adopted, and I think that your Lordships will consider that it is desirable to stick to the old Act. I presume that the reason for the alteration made in this clause is that the Government may be able to get the land more cheaply, and obviously some one will suffer a loss, because something will be taken away front them which has value, and for which they will receive no compensation.

I think that the argument of the noble Viscount in favour of this subsection in his speech on the Second Reading was purely that if the subsection were not in there might he some delay caused. The Government during the war, as the noble Marquess said just now, were extraordinarily well treated, but if they had exercised their powers somewhat more moderately probably people would not be so suspicious. It is perfectly well known that in many cases— I think we may say the majority of cases— when they had an opportunity they treated people harshly. Anyhow, they have not shown the consideration which was expected. In this case, however, if my Amendment is not accepted, these people who have the right of pre-emption will have it taken away from them. I do not know what value that right will have; in some cases, I suppose, it may be very considerable. At all events, they are having certain rights taken away front them which it was thought quite reasonable in the original Act that they should retain, and these rights are taken away without any compensation being paid.

Amendment moved— Page 2, lines 13 to 18, leave out subsection (1).— (The Duke of Buccleuch.)


I should be glad if your Lordships would allow me, in dealing with subsection (1) to refer also to subsection (2), on which the noble Earl, Lord Ancaster, has an Amendment. This clause deals with the rights of pre-emption. When land has been severed from other lands and that land is to be sold then, under the principal Act, the land must be offered first to the original owner and then to the contiguous owners. The proposal here is that that right should be taken away from the contiguous owners, and that it should be limited as regards the original owner. I was about to suggest, if that would meet noble Lords, that the right should be taken away from the contiguous owners, and that it should remain with the original owner and with any person now holding— that is to say, who had purchased front him or taken it in any other way. That preserves not only the rights of the original owner but also the rights of the persons who may have bought from him and given money for those rights.

If that Amendment were accepted I would agree to the Amendment of Lord Ancaster to leave out subsection (2), but I ant afraid I cannot accept the Amendment moved by the noble Duke, and for very practical reasons also. Let me say a word as to the history of this right. It conies under Section 5 (3) of the principal Act, which was adopted from the corresponding provisions of the Lands Clauses Act, mainly designed to apply to railway companies. These companies acquire strips of land for railway purposes, and it was reasonable that if any part of this land became surplus it should be offered to the landowners on either side. But this particular provision is really—I will not say out of place, but entirely different; because the land so acquired is often an area of considerable extent, and may a[...] different points touch the land of various landowners. These lands are also subject to leases and sub-leases, and it is difficult to find out who are the people who have the right of pre-emption. I have one case where there were twenty-two adjoining owners. Very often these adjoining owners do not answer the letters sent to them, and it therefore may take years before the Government is able to deal with such land. It practically stops the Government from dealing with the land at all. A prospective buyer comes along and offers so much, but the Government have to offer it first not only to the original owner, but to the adjoining owners as well, and the transaction may take two or three years. It is a preposterous right to be enjoyed, and I think your Lordships should accept that portion of the Bill which takes away this right from contiguous owners leaving it with the original owner. I cannot accept the Amendment.


I do not wish to press the Amendment now although I may perhaps have to bring it up again on the Report stage.

Amendment, by leave, withdrawn.

THE EARL OF ANCASTER moved to leave out subsection (2). The noble Earl said: It is hardly necessary for me, after what the noble Viscount has said, to do anything more than move my Amendment. I am pleased that he has intimated his willingness to accept it.

Amendment moved— Page 2, lines 19 to 25, leave cut subsection (2).—(The Earl of Ancaster.)

On Question, Amendment agreed to.

THE EARL OF ANCASTER moved to leave out subsection (3). The noble Earl said: I should like to ask why this sub- section is put in. It wants a little explanation. As it reads it is not quite clear; but apparently it gives the heir the right of pre-emption, but does not extend it to trustees. It might very often happen that the owner is a minor with no money of his own. A great many minors are in that position; and it may be most desirable that the portion of the estate taken by the Government should be bought back. The trustees by the original Act of 1916 would be able to do so, but this subsection, as I understand it, appears to cut out the trustees altogether.

Amendment moved— Page 2, lines 26 to 32, leave out subsection (3).—(The Earl of Ancaster.)


I am obliged to the noble Earl for raising this point, but I think it is already covered. He will see that the words "tenant for life, or person having the powers of a tenant for life" are in the clause and I am advised that they include trustees.


I was a little suspicious of the subsection being there at all.

Amendment, by leave, withdrawn.

Clause 2, as amended, agreed to.

Clause 3:

Provision as to acquisition and possession of land under the principal Act..

3.—(1) It is hereby declared that—

  1. (a)the power of acquiring land or interest in land conferred by section three of the principal Act authorises, and shall be deemed always to have authorised, such acquisition for the purposes of resale, in cases when such resale is required with a view to the realisation to the best possible advantage of the value of buildings and works erected or constructed wholly or partly at the expense of the State, or of any State which acted in alliance or in naval or military co-operation with His Majesty during the war, or when for any other reason it appears to the Railway and Canal Commission expedient in the financial interests of the State or of such State that the acquisition for such purposes should be authorised;
  2. (b)the expressions "Government department in possession" and "occupying department," where used in the principal Act, and this Act, mean, and shall be deemed always to have meant, the Government department for the time being in possession of land, notwithstanding t hat the department so in 363 possession is not the department by which or on whose behalf possession was originally talon, but is in possession by virtue of a transfer from the said department or from some other department to which possession has subsequently been transferred;
  3. (c)where the occupying department has created or purported to create any tenancy or other interest in the land of which it is in possession in favour of some other person, or has allowed any other person to use or occupy that land, the occupying department shall, for the purposes of the principal Act and this Act, be deemed to have continued in possession of the land, notwithstanding the interest therein of, or the use or occupation thereof by, such other person;
  4. (d)the possession by an occupying department shall be deemed not to have been affected or prejudiced by reason of the land or any part thereof at any time ceasing or having ceased to be used for the purpose for which possession thereof was originally taken, or otherwise being or having been used for any other purpose;
  5. (e)subsection (4) of section one of the principal Act shall not be construed as limiting the power of one Government department to transfer possession of land to another Government, department during the continuance of the present war.

(2) A Government department in possession of land under a lease or tenancy granted or created prior to the commencement of the present war shall have the like power of removing any building or other work which, for purposes connected with the present war, has been erected or constructed on, over, or under that land wholly or partly at the expense of the State as is conferred by section two of the principal Act on an occupying department, and this power shall be exerciseable notwithstanding any provision of the lease or tenancy under which the land is held, or anything in paragraph (b) of the first proviso to subsection (1) of section two of the principal Act.

LORD HINDLIP moved to leave out paragraph (a) The noble Lord said: This is a most important clause; in fact, the noble Viscount on the Second Reading said that it was the most important in the Bill, and that under it there was a sum of something like £10,000,000 involved. I am sure that no one in moving the omission of this provision, neither myself nor any noble Lord who supports me, wishes to hamper or harass the Government in any way in obtaining some of the money due to them for the buildings and properties they have required for the war. When the noble Viscount expresses such fears regarding the interests of the taxpayer I hope he will not forget the fact that there are persons who own land an some form or other and that they are not exactly a fortunate class.

This clause gives the Government power to acquire land not as under the Act of 1916 for purposes connected with the war, but for purposes of re-sale, and its object is to enable them to do certain things which they tried to do during the war and which they found themselves unable to do because they had not the legal power. This clause asks for entirely new powers, and for purposes which are not connected with the war. The noble Viscount referred earlier to the ingenious minds of Lincoln's Inn, but there are ingenious minds in the Government, and in framing this clause they have done so in order to enable the Government to get hold of something at a low price in order to re-sell it at a profit. Under this clause they can come down and any person interested, apparently, has no appeal except to the Railway and Canal Commissioners when it appears to the Commission that it is in the financial interests of the State that the acquisition of the land should be authorised.

I do not understand whether there is any appeal under this clause. I cannot see that there is. If the Department concerned is in possession of a factory they can conic down on the owner of the adjoining land and say that they want to re-sell the factory. They can say, "We have an offer from such and such a firm, but to enable us to carry through the sale we want to take a certain amount of the area adjoining the factory." They propose to do that by compulsory power, and, I suppose, will pay a price probably under its market value. If they are going to take such land in order to enable them to sell an existing factory there ought at least to be an appeal to some tribunal, and they should really pay a higher price than they do when land is acquired under compulsion.

Take a rather exaggerated illustration. Suppose a Government Department had a few acres of land in the middle of a farm where they had erected an anti-aircraft gun with officers' and men's huts. The War Office and Ministry of Munitions can go to the Board of Agriculture and say, "We have a few acres, or one acre, with a nice little collection of huts on it." Under this Bill the Ministry of Agriculture can step in and acquire this one acre of land, go on and take the "eve" out of the farm, perhaps another five or ten acres, by compulsion, under the market price, and then resell the whole at a large profit. There seems to be no end to the purposes that this clause can be adapted to, not for the purpose of the Department which originally bought the land but for any purposes which any other Department might be likely to acquire property for.

If the Government or Department had leased or purchased one building connected with a large factory comprising several buildings, because it was in possession of that one particular building there is nothing, as far as I can see, to stop the Government going to the company Owning the whole factory and saying, "Because we are in possession of this building we cannot sell this building unless we secure the whole of your factory and the whole of your works." I cannot imagine that the manufacturers of this country would sit down under anything like that. No business would be safe; there would be no continuity for five minutes. I see nothing in the clause which would prevent or check any action of that kind if any Government Department chooses to take it. I hope the noble Viscount will say he will bring up a new provision on the Report stage with less drastic powers, and will allay some of our fears and misunderstandings, giving an appeal to some independent person as to whether the other pieces of property are to be compulsorily acquired in order to enable the Government to sell that of which they are already in possession.

Amendment moved— Page 3, lines 2 to 16, leave out paragraph (a)(Lord Hindlip.)


This is, as I said, from a financial point of view the most important clause in the Pill. It will be my duty to say, and to say quite clearly, what will be the effect upon the taxpayer and how large will be the present made to landowners out of the taxpayers' money if this clause is defeated. The noble Lord who has introduced this Amendment I do think dealt quite fairly with the clause itself, because he drew a very gloomy picture indeed of the extent to which Government Departments were going about acquiring a large amount of extra land because they had some small portion of a farm or small building, without any control or any check, in order to make a better sale. I am afraid the noble Lord has not read the clause itself, because if he had he would have seen that it is all subject to the Railway and Canal Commission, a body whose praises I heard sung by noble Lords on that side only a few minutes ago. No doubt he may enjoy himself by suggesting that Government Departments will act with injustice and unfairness and without any regard to equity, but he is not really going to suggest that about the Railway and Canal Commission. When I tell your Lordships that these things are subject to the judgment of the Railway and Canal Commission, I shall be very much surprised if any noble Lord will again levy those charges that he has levied against the justice and equity with which the Railway and Canal Commission act. Therefore I do not think I need deal further with a point of prejudice of that kind.

This clause settles what I call the Lincoln's Inn doubt. The noble Lord rather suggested that the Government were trying to acquire fresh powers. All they are doing is trying to make sure that they have the power to resell property they acquire which has been used, of course, under the Defence of the Realm or in other ways, and recoup the taxpayer for the large expenditure that has been made. I confess that on reading the Act of 1916 it seemed to me amply clear that the Government could purchase for the purpose of resale. Apparently some persons of great legal distinction have doubted that, but I should like to point out to your Lordships that Lord Elphinstone, who was I believe in charge of the Acquisition of Land Bill 1916, made it perfectly clear to your Lordships at that time that the Government considered under the Bill as drawn that they could acquire land for the purposes of resale. The Amendment of the noble Viscount would very largely defeat one of the main objects of the Bill by making it impossible for the Government to purchase land for resale and thus get back part of the enormous expenditure they have incurred. It was felt by your Lordships on that occasion that it would be very wrong to prevent the Government from purchasing land for the purposes of resale, and therefore that Amendment was withdrawn. Your Lordships' House is a continuous House, not like another place which is subject to periodical elections, and when it was perfectly plainly laid down when that measure was passed through your Lordships' House that the Government d id intend to use that Act for the purpose of purchasing land for the purpose of resale, your Lordships acquiesced in it. I do not think von can really raise the doubt now that the Government were not quite certain they bad at that time the power to do it.

The noble Lord went further. He said that the Government now want to get fresh powers to do a thing which had been done before. The noble Lord is quite wrong. They had been acting because they thought they were acting perfectly bona fide under those powers. That has the additional result that while there will be a tremendous lot of fresh cases if they are not allowed to act in that way, there is also a great danger of past cases being reopened as well. The noble Lord opposite asked me, when we discussed this matter a few days ago, if I could state something a little more definite than the large round sum which I gave him as what the Government considered they would lose if they were not able to use their powers of purchase and resale in order to get the best value they could for the very large factories and buildings that have been put up. I have done my best to get some very salient examples. The noble Lord, of course, would not expect me—no noble Lord would—to quote names and cases and so on, but I have very large figures here showing the advantage to the Government and the taxpayer if they possess these rights. I shall be perfectly ready to show these to any noble Lord in confidence, because I do not want to keep anything back; it would be unwise in the public interest to do so. I can only assure noble Lords that very large sums, millions in fact, are involved in this.


Cannot you explain the kind of difficult case that arises, without giving us the names?


I am going to give one special case, but I want to explain what will happen if this is not passed. Either one of two things will happen. These large buildings erected at heavy cost at the expense of the taxpayer will go back to the landowner and you will be making an immense present of millions of the taxpayers' money to landowners. I am sure that your Lordships will feel that this would be an impossible proposition. The other alternative is that these great buildings should be sold merely at their scrap value which is very small, and the State would have to incur very large sums in many cases for reinstating the ground into the condition in which they took it. There again you would see what large losses would be incurred.

The noble Earl asked me to give a general indication of one or two cases. I would like to give one specially in reference to that right which the Government has, subject to the Railway and Canal Commission, to acquire certain land in order to facilitate the sale of the factories and land they have already got. I dare say your Lordships will recognise it, but I do not think it very much matters, because it is to some extent public property. It is a case where the sale of the corpus is estimated to bring in about £2,000,000, but the would be purchasers are insisting, as a condition of the purchase, that they should have a certain amount of other land acquired for and conveyed to them in order that they may make this corpus a working property. If that cannot be done, of course, it is not a question of getting a smaller price; it is a question of getting no price at all. That is what I want to insist upon in these cases. It is not a question of getting a little more, as the noble Lord suggested, or making a better bargain for the State; it is a question of being able to make a bargain at all. It leads to that disagreeable alternative of making a considerable loss or of giving large properties which they have not earned to the landowners.

I have here a long list of cases, but I do not know that it would be an advantage to your Lordships if I went through them. They are all really of very much the same character. I can only say again that it is entirely a matter for your Lordships. It may be considered a hardship in some cases when a man's land has been taken under the Defence of the Realm Regulations for the purposes of the war and he expected to have the land back at the end of the war. But, meanwhile, large buildings have been erected, the situation is changed, and the question is how it should be dealt with. I am asking your Lordships to deal with it as is proposed in the Bill—that the Government should have the right to acquire the land on which these large buildings stand and be able to re-sell it in order to realise the fullest value for the taxpayers' expenditure. If that is not done, as I said, a large sum of money, amounting to £9,000,000 or £10,000,000, will be lost, and I must leave that issue entirely in the hands of: Jour Lordships who can judge the matter as you think best.


May I ask a question? I do not quite understand. How was it the Government were able to use these factories and were them without this additional piece of land, while nobody else can?


I think there are two answers to that. First of all, they were used during the war in many ways that war not quite legal. Secondly—I can only give this general answer—the commercial purposes for which they are needed do require this addition for means of access, or area, or possibly a place for housing.


I can understand that a new use might require other facilities, but there are other cases in which I rather gather the Government have been using land which they have not acquired.


In some cases that is so.


think the conclusion that will be drawn from the Noble Viscount's speech is that the right way to deal with this clause is to strike it out and let something be properly drafted directed to the matter that is really sought to be obtained. It is a very good instance of a Government Department spoiling its proposals by casting its net too wide, We not only appreciate, we sympathise, with the desire of the War Office, or whatever other Department may be concerned, to dispose of large undertakings to the best advantage, but here are cases in which, when the Government took the land and when the surveyors and other people whom they employed considered what the site should be, they did not take enough. Here are cases where they have taken sites quite adequate for the purpose in hand but now contemplate their being employed for some other and different, purpose, They propose to cast this net in a general form at a width which I have never seen exceeded in proposed legislation of this kind.

Not only do they begin by saying that the principal Act is declared to authorise and shall be deemed always to have been authorised acquisition of land for re-sale—that is to say, to patch up sonic mistakes that have been made in the last three or four years by people who have not taken proper legal advice—but go on to ask from Parliament two powers of purchase for re-sale—that is to say dealing in somebody else's land. They are two separate purposes. The first that they are entitled to acquire land "for the purpose of re-sale when it is required by the Government with a view to the realisation to the best possible advantage of the value of buildings and works"; and the only test of their being entitled to do that is that they require it with that view, and the Railway and Canal Commission has nothing to do with that. There is no appeal. The Department says, "We are going to drive a bargain, or somebody else is going to drive a bargain, and for the purpose of re-selling this land we ask Parliament to give us powers to take it on the modest compensation terms of the principal Act in order that we may sell it again to somebody else."

As if that was not enough this applies not only to buildings erected at the expense of His Majesty's Government, but by any State which acted in alliance or in naval or military co-operation with His Majesty during the war, so that if any of the Governments who fought with us had erected any sort of warehouse, works or what not, and its financial advantage is consulted, it also is entitled to require somebody's land to be taken. Then you come to another branch of the sentence—and it is true the Railway and Canal Commission come into it, but only for the purpose, if I may be permitted the expression, of making respectable a proposal which would not be tolerable otherwise— or when for any other reason it appears to the Railway and Canal Commission expedient in the financial interest of the State or of such State that the acquisition for such purpose should be authorised. There is only one question to be put to the Railway and Canal Commission—"Does it appear to you to be expedient in the financial interest of Great Britain, or of the United States, or Belgium, or whatever other Power it may be, that the acquisition for such purposes should be authorised?" If the answer is "Yes," there can be no doubt about it, the power then applies. I do not doubt that the noble Viscount, even if lie accepts my interpretation of the clause (which perhaps he is not willing to do) would say at once that he shrank from contemplating the application of Parliamentary powers to that extent.

I was a little puzzled by the noble Viscount's appeal to the debate in 1916. What I understood him to say was that it was clear that the original Act gave this power. Then he said, Your Lordships must have thought so too, because Lord Elphinstone told the House, that it was contemplated by the words he was proposing that these powers should be enjoyed, and the House did not object. We did not object too much in 1916. Since then the Government has consulted its legal advisers—I suppose, the Law Officers, not, as the noble Viscount seems to think, members of Lincoln's Inn, but both of them ornaments of the Inner Temple. And they have been told that they were quite wrong, and not only was the House wrong but the Government was wrong in 1916. We had accepted in the wrong sense the words put forward by the Government under no advice, or wrong advice, and now we are told that it hardly becomes us to go back upon what was said then. That is an argument which the noble Viscount on the Report stage will perhaps not bring up again.

As the clause stands the Government can do these things. Let a Department say, "We did not think of it in time; we did not acquire as much land as we should have done in the first instance; but we will acquire it now," and they will get the land for the purpose of resale of the buildings and works to the best possible advantage. Or alternatively let them say to the Railway and Canal Commission, "Don't you think it would be expedient in the financial interests of the State that this land should be acquired and sold, because manifestly it would be a benefit to the State," and they will get the power. Surely that is not the right way to deal with these specific instances. I daresay the noble Viscount has perfectly good cases which could be dealt with one by one, as would be the case if it were private Bill legislation. But to deal with these instances by general methods like this, by taking general powers applicable to whatever ease the words may happen to fit, is I submit, the wrong way to deal with it. The words are made as wide as possible, and I submit to the House that whatever else can be done this really is not good legislation. It is not following good models to proceed in that fashion I would again say to the noble Viscount that the House is anxious to help him. We are not dividing in order to crab the Government Bill. We are interested as taxpayers as much as anybody else in the best realisation of these properties, and I do not think that any word has been said in the course of this debate which warrants an appeal such as the noble Viscount has made. The noble Viscount asks, Is it possible to think of the landowner being presented with all buildings left upon his land? "No single speech and no single Amendment has taken that line.


Which presumably he could not sell either.


Which he could not sell either, because he has not a Naboth's vineyard belonging to somebody else. If the noble Viscount would go to his advisers and direct their attention to submitting specific proposals, I am sure such proposals would receive the most favourable consideration from the House. I feel, and I think most of your Lordships also feel, that it is positively alarming to see a clause like this put before us with the object of turning it into law—a clause which may regulate very large undertakings for we do not know how long, and which may live in the acts of other and less moderate and self-restrained Governments and officials.


We are dealing with a difficult matter, which I want to see adjusted if possible. I wish to know whether I understood the noble Viscount. Did he say that, whatever may be the construction of the clause as it stands, there was to be an appeal to an outside body, the Railway and Canal Commission, to decide whether land should be taken for purposes of resale or not in all cases?


He did say that.


If that is to be carried out, I for one should not vote against this clause. I think you must have something. I do not agree as regards the 1916 Act. I think yon must deal with this in some way, but if you are to exercise the right which the subsection purports to grant in all cases, subject to an appeal to an outside body like the Railway and Commission, I think that would be one way of safeguarding against the difficulties to which the noble and learned Lord, Lord Sumner, has referred. Perhaps the noble Viscount will make clear what he did say.


I do not think that in all cases there is an appeal.


You did say in all cases.


It was a slip if I did say so. I was referring to the suggestion of the noble Lord opposite, that this additional land might be acquired for the purpose of selling an undertaking without anybody considering it. It was with that I was dealing. I thought that I carefully limited myself, but I should be very glad to consider the suggestion that in all cases there should be a reference to the Railway and Canal Commission.


It is a very important point.


I do lot think it is possible to deal with it as the noble and learned Lord suggested—that all these cases of purchase should be carried out by means of a private Bill. That would mean a waste of time, and the expense would be tremendous. I should like to refer to two other points. I will not go back to the argument regarding the 1916 Bill; nevertheless I think my argument on that is sound, and I am ready to repeat it on Report if necessary. Criticism was made upon a point to which. I referred at some length on Second Reading. That was as regards foreign and allied States. I said then that the object of these words was to deal with certain aerodromes which have been put up by our Allies the United States, and which we have promised

that we would realise to the best advantage. I stated that one of the powers in this clause was to enable us to do that. If we were not able to secure the land for the purposes of resale it would be impossible to do that.


That can be clone under the existing law. It does not involve taking fresh powers.


I have said again and again that the Government were quite clear until lately that they had the power; that they were asking for these powers not as new powers but to quiet the doubts which had arisen, and that they had proceeded all along on the supposition that they had the power to purchase for re-sale.


The noble Viscount certainly said that there was an appeal to the Railway and Canal Commission, and the noble and learned Lord, Lord Parmoor, has said that if there were such an appeal he would not vote against the clause. With all due deference to the noble Viscount I am not sure, in spite of what he said, that under the clause there is an appeal to anybody. It says "when for any other reason it appears to the Railway and Canal Commission expedient in the financial interests of the State or of such State that the acquisition for such purposes should be authorised." If a Government Department goes to the Railway and Canal Commission and says, "We can find a piece of land for £100, and can re-sell it for £150," of course it would be in the interests of the State to purchase that, or any other property which could be re-sold at a profit.

On Question, whether the words proposed to be left out shall stand part of the clause?—

Their Lordships divided: Contents, 32; Not-Contents, 24.

Birkenhead, L. (L. Chancellor.) Onslow, E. Cottesloe, L.
Ancaster E. Reading, E. Hylton, L.
Bradford, E. Vane, E (M. Londonderry.) Lee of Fareham, L.
Chesterfield, E Muir Mackenzie, L.
Craven, E. Sandhurst, V. (L. Chamberlain.) Ranfurly, L. (E. Ranfurly.)
Curzon of Kedleston, E. Peel, V. Ranksborough, L.
Dartmouth, E. Riddell, L.
Eldon, E. Annesley, L.(V. Valentia.) Somerleyton, L. [Teller.]
Lucan, E. Avebury, L.(V. Valentia.) Somerleyton, L. [Teller.]
Lucan, E. Avebury, L. Stanmore, L.[Teller.]
Lytton, E. clwyd, L. Strabolgi, L.
Malmesbury, E. Colebrooke, L. Wigan, L. (E. Crawford.)
Linlithgow, M. Ampthill, L. Hindlip, L. [Teller.]
Salisbury, M. Ashton of Hyde, L. Lamington, L
de Mauley, L. Lawrence, L.
Doncaster, E.(D. Buccleuch and Queensbeery.) Denman, L. Monteagle, L.(M. Sligo.)
Ebury, L. St. Leven, L.
Erskine, L. [Teller.] Strachie, L.
Lindsay, E. Fairfax of Cameron, L. Sumner, L.
Roden, E. Faringdon, L. Sydenham, L.
Selborne, E. Harris, L. Wrenbury, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment disagreed to accordingly.

THE DUKE OF BUCCLEUCH moved, at the beginning of paragraph (a), to leave out "authorises and". The noble Duke said: I understand that the effect of leaving out those two words will be to restrict the operation of the clause to purchases that have already taken place; it will not affect those which take place in future. I hope the noble Viscount will see his way to accept it.


I think it must be obvious to the noble Duke that I cannot accept his Amendment, because it would have the effect of abolishing all those cases for which I am asking power. I doubt whether the Amendment would have any effect at all, because I think even without it the words would be sufficient to authorise new cases.

Amendment, by leave, withdrawn.

THE EARL OF ANCASTER moved, in paragraph (a), after "Railway and Canal Commission," to insert "after hearing all persons appearing to the Commission to be interested who apply to be heard." The noble Earl said: T he object of this Amendment is to give other persons besides the Government an opportunity of stating their case to the Railway and Canal Commission. It appears a little hard that there is nothing in the Clause—so far as I can see, at any rate—enabling the parties concerned with the sale or resale of this land to have any hearing at all, and I think it is only fair that they should at least have a hearing. Whether it will do them very much good is a little doubtful, because I find that the Railway and Canal Commission are to judge whether it is expedient in the interests of the State, but perhaps a party interested might offer to put up some money in order to state a case.

Amendment moved— Page 3, line 13, after ("Commission") insert ("after hearing all persons appearing to the Commission to be interested who apply to be heard ").—(The Earl of Ancaster.)


I am much in doubt whether the noble Earl's Amendment is really necessary. He suggests the insertion of the words "after hearing all persons appearing to the Commission to be interested who apply to be heard." First of all, therefore, the persons must apply to be heard, and then if the Commission think they are interested the Commission is ordered to hear them. Surely it is almost incredible that the Commission, after deciding that certain persons appear to have a right to be heard, should not hear them? Is not the Amendment almost a reflection upon the wisdom of the Railway and Canal Commission? I suggest to the noble Earl that it is hardly necessary.


I hope the noble Viscount, as he is dealing with these words, will bear in mind before the Report stage what he said as regards the Commission under paragraph (a) generally. I do not want to refer to it again. I was one of those who did not vote against the clause because I understood that there would be some amendment on that point. I am not pressing it to the full extent, but I understood that there was to be some amendment, or some consideration.


I will deal with that later.


I do not propose to persist with the Amendment.

Amendment, by leave, withdrawn.

THE EARL OF MALMESBURY had an Amendment on the Paper to leave out paragraph (b). The noble Earl said: At this late hour of the evening I do not propose to press this Amendment to a Division, but I should like to have some clear understanding from the noble Viscount in charge of the Bill as to what the paragraph exactly means. Under this Bill unrestricted transfers of land from one Department to another are permitted.


It is limited under the principal Act.


Now I think it is to be unrestricted. Many of your Lordships, I believe, would be very glad to know exactly for what purpose this alteration of the law is made. For instance, land which has been acquired purely for war purposes may now he transferred to other Departments for purposes of housing, land settlement, the building of Government offices (although we hope they will soon be greatly reduced in number), and so on. There are already on the Statute Book Acts giving facilities for the acquisition of laid for these purposes, and therefore perhaps the noble Viscount will tell us exactly the reason for the alteration made by the Bill.


It arises from the fact that during the last part of the war Departments were formed and re-formed and re-shaped, and one branch split off from one Department to another. As a consequence in certain cases land and buildings may have been transferred to a Department which was not authorised under the Act of 1916, that is to say, it was not limited to the War Office, the Air Ministry, or the Admiralty. Then under paragraph (e), which the noble Earl proposes in a later Amendment to leave out, the limitation of the power of the Government to transfer possessions from one Department lent to another is taken off. I will give a particular case. I think there was general joy in your Lordships' House over he imminent dissolution of the Ministry of Munitions. The Ministry of Munitions, of course, had certain possessions, among which, we will say, was a certain building scheme with houses. The idea is that I hat should be transferred from the Ministry of Munitions to the Board of Works, because I believe that is the appropriate Department in that particular case. That could not be done without paragraph (e), and I am sure the noble Earl will not wish tie Ministry of Munitions to be maintained in life.


Hear, heir.


I am much obliged to the noble Viscount, and I do not propose to proceed with this Amendment or with the two following Amendments which stand on the Paper in my name.

Clause 3 agreed to.

Clause 4:

Consent under section six of the principal Act

4.—(1) It is hereby declared that the consent—

  1. (a) of a local authority under the proviso to, subsection (1) of section six of the principal Act to the use of a railway or tramway across a roadway on the level being continued after the-expiration of two years from the termination of the present war; and
  2. (b) of the commission under subsection (3) of that section as to keeping a public highway closed beyond the expiration of twelve months after the termination of the present war,
may be given at any time before the expiration of those two years or those twelve months as the case may be.

(2) If any person considers that the consent of a local authority under the said proviso to subsection (1) of section six has been unreasonably withheld he may appeal to the Minister of Transport whose decision shall be final and shall have effect as if it were a decision of the authority:

Provided that the Minister may before considering any such appeal require the appellant to deposit such sum, not exceeding ten pounds, to cover the costs of appeal as may be fixed by rules to be made by him.

LORD SUMNER moved to leave out subsection (2). The noble and learned Lord said: The clause deals with the case of level crossings, railways or tramways across a roadway on the level which have been made in the course of the war. The original Act provided that they were not to be continued after the expiration of two years from the termination of the war if the local authority did not give its consent. Clause 4 (2) contains this singular provision, that— If any person considers— —whoever he may be— that the consent of a local authorty under the said proviso of subsection (1) of section 6 has been unreasonably withheld he may appeal to the Minister of Transport, whose decision shall be final and shall have effect as if it were a decision of the authority. Now surely there can be no reason for doing that. In 1916 it was recognised—and I should have thought quite rightly recognised—that the question whether there should be a level crossing (a most inconvenient thing on a roadway) in its jurisdiction was a matter to be settled one way or the other by the local authority which represents the locality. That certainly was the view of Parliament then. It is, of course, perfectly obvious that the local authority may endeavour to make a hard bargain—probably a harder bargain than they really ought to make— when their consent is applied for, and there would be no difficulty in introducing a clause to deal with a ease like that. But to take away from the elected local authority the original protection, which the original Act gave, seems to me to be a thing which requires a great deal of justification. Surely to appeal on the motion of anybody, whether lie is concerned or not, to the Minister of Transport, who is not told how lie is to inquire into the matter, who may do it by any official that he likes to send down, who is not bound to hear the parties, and who simply has to say, as though he were the local authority itself, "This shall or shall not continue," is a wholly unreasonable piece of bureaucratic officialism. After all, all that is in dispute is the cost of an under-bridge or an over-bridge to somebody. The evil that can be done by having level crossings on public thoroughfares—and this clause applies to all public thoroughfares —is, as your Lordships know, very great, and I submit that subsection (2) ought to be left out, and that the right of decision should rest with the local authority.

Amendment moved— Page 4, line 33 to page 5, line 2, leave out subsection (2).—(Lord Sumner.)


Your Lordships will realise that these level crossings are of very great importance, because they connect in various places the railway with the factory. Unless, therefore, the factory can possess this means of access to the railway or the siding it will make all the difference as to whether the factory can be sold or not. The noble and learned Lord says that it is very hard that the local authority should not be left as the final arbiter of the question whether the line should or should not run across the road. Some of your Lordships may possibly take that view, but it is through experience that the Government are asking that the matter should be referred to the Ministry of Transport. I will take one or two actual, concrete cases, without mentioning names. In one case the local authority has refused altogether to give any assent, without giving any reason at all, and as the result it will be impossible to sell the factory. In another case one of these small local authorities—they do not always act under the dictates of the highest wisdom—is trying to get the level crossing placed on another side of the road, for various reasons which I need not go into. Where there is definite obstruction, as there is in some cases, ought the local authority to be allowed to override the advantage of the taxpayer, and is there anything very hard in making the Ministry of Transport the arbiter? Because, after all, the Ministry of Transport looks after all kinds of transport, road transport and railway transport. It may therefore, I think, be considered a pretty fair arbiter between the relative demands of road and railway transport, which is the only thing which arises. I would urge the noble and learned Lord not to press the Amendment. I cannot think of any cases in which the Ministry of Transport is likely to be an unfair judge, or to have any particular interest in deciding unfairly.


I do not think I can accept the suggestion of the noble Viscount. The Ministry of Transport has not as yet won the confidence of the country on a very large scale, and I have pointed out that it is perfectly clear it is not a question of not being able to sell the factory. You have only to carry the tramway over or under the road at an expense not fatal to the sale of the factory, and the thing is done.


It is quite plain that this easy way out cannot be accepted. We have to get on to the main line at particular levels, and to go over or under is not a practical engineering feat in many cases.

On Question, Amendment negatived.

Clause 4 agreed to

Clause 5:

Provisions as to retention of possession and acquisition of land belonging to railway companies, etc.

5.—(l) For paragraph (b) of subsection (2) of section thirteen of the principal Act, the following paragraph shall be substituted:— (a) land belonging to any company or corporation carrying on a railway, dock, canal, water, or other public undertaking, other than—

  1. (i) land which having before the commencement of the present war been used for the purposes of the undertaking, had before that date ceased to be so used; and
  2. 381
  3. (ii) land which had never been so used before that date, or which has been acquired by the company or corporation by agreement without statutory powers for the purpose, not being in either case shown to the satisfaction of the appropriate department to be and required for the purposes of the undertaking."

(2) Where under the sail subsection the consent of the appropriate Governments department to the retention of the possession of land mentioned in the said paragraph (b) is requested by the Occupying department, the first-mentioned department, in determining whether consent shall be given, shall take into consideration the expediency of such retention for enabling the realisation to the best possible advantage of the value of buildings and works erected or constructed on the land wholly or partly at the expense of the State.

THE EARL OF ANCASTER moved, in subsection (1) (b) (ii), to have out "appropriate Department" and insert "Railway and Canal Commission." The noble Earl said: This clause is looked upon with grave suspicion by the railway companies. It has been their custom in the past, and a sensible custom, to acquire land by the side or in the vicinity of their lines which inlay possibly at some future occasion be required for the working of the railway, and by this means they have obtained the land at considerably less price thin they would have paid for it if they had bought it at the last moment in a hurry. As the clause stands the Government would have, practically, control over land which had not been used by a railway company, and the "appropriate Department" might be the very Department who would wish to deal with the land and say whether the railway company should be deprive of or not. If the Government require to take possession of such land it should certainly come before an impartial tribunal such as the Railway and Canal Commission, and should not be decided by the "appropriate Department."

Amendment moved— Page 5, lines 17 and 18, leave out ("appropriate department") and insert ("Railway and Canal Commission").—(The Earl of Ancaster.)


I do not want to be more intransigent than is necessary, and if the noble Earl desires to press for this change I will not oppose it.


I had intended to move the omission of Clause 5, but as the noble Viscount has made this concession I will not do so now. I may have to move that on the Report stage.

Clause 5, as amended, agreed to.

Remaining clauses agreed to.