Lords Sitting of 9 December 1936

Preamble
The House met at a quarter before four of the clock, The EARL OF ONSLOW on the Woolsack.

HIS MAJESTY THE KING.
LORD SNELL: My Lords, I beg to ask the noble Viscount the Leader of the House whether he has anything to add to the statement which he made on Monday last.
THE LORD PRIVY SEAL (VISCOUNT HALIFAX): My Lords, I have nothing further to add to-day, but I hope to be in a position to make a statement to-morrow.

CHANNEL TUNNEL PROPOSAL.
LORD KILMAINE LORD KILMAINE asked His Majesty's Government whether the idea of a Channel tunnel between France and England has been finally abandoned and, if so, for what reason. The noble Lord said: My Lords, the subject of the Question I have put down on the Paper today is one that used to be of considerable interest several years ago to many people on both sides of the Channel, but I have not heard it discussed or mentioned in the Press for some considerable time. If I remember aright, the last time the matter was before your Lordships the main objections raised to the scheme were on grounds of strategy. It was held that in the event of war the existence of a tunnel between this country and the Continent might be a source of considerable danger. I remember hearing this argument disputed by those who were in favour of the tunnel, who pointed out that in the event of a war and of the tunnel being thought to be in danger, either country having control of the ends of the tunnel could quite easily flood it or blow it up or otherwise put it out of action. In any case these arguments held and the scheme was dropped.
In these modern times, supposing that unfortunately another war should break out and there was a risk of invasion of this land, surely the invasion would come from the clouds and not from either across or under the sea? I notice that recently there has been instituted a Channel ferry
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which has successfully conveyed passengers and freight even in the recent rough weather, but I have yet to learn how people using this ferry enjoy themselves. I myself would much prefer, certainly in rough weather, to be in a comfortable steamer's berth than in a railway carriage with four or five other passengers. Living as I do nine months in the year on the Sussex shore, I know for a fact how from October to April there are very few days when the sea can be called calm. I cannot believe that this Channel ferry scheme will be popular.
I have spent half my life in France. I know the French people. I have always found them delightful and most anxious to make one's stay in their country happy and pleasant. I certainly feel that it is vitally important that this country and France should be on the very best possible terms because, if another war were to break out, which in the present state of the world and from the way all the rations seem to be arming at a feverish rate might come to pass sooner than some people expect, it would be very desirable that we and the French should be comrades-in-arms. I suggest therefore that a Channel tunnel at the present time might be of the very greatest benefit to both countries. There is no doubt it would be very valuable to trade and commerce, and it would greatly stimulate tourist traffic. Moreover, in the unfortunate event of war, it would be of great assistance both for the conveyance of men and arms and, still more, for the return of badly wounded people from the seat of war, always provided of course that the tunnel, if it existed, could be rendered immune from hostile attack. Therefore I beg to ask His Majesty's Government if this scheme has been finally abandoned and, if so, for what reason.
LORD LAMINGTON: My Lords, I hope His Majesty's Government will give an answer in the negative to the suggestion made by the noble Lord in his speech. He asks what reasons there are which have prohibited the building of the Channel tunnel. These reasons have been stated time after time by the authorities responsible for the defence of this country. The favourite reason for the construction of the tunnel to-day is that our insular position has now gone owing to the introduction of flying. But if in-

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roads have been made into what has hitherto been an impregnable system, why add another breach? It seems an illogical argument. All naval and military authorities have always been against this proposal, even when we have had Governments rather in favour of the idea. At some future time there may be a unified European system, a federated Europe, and it may be that the Channel tunnel can then safely be constructed; but in the meantime it would be a distinct danger.
I see no reason for going behind what has been decided in the past. It is not only in time of war that I regard this tunnel as a danger; but in time of peace you would have this, artery connecting you with all the complications of European politics, and you would always be afraid that some advantage might be taken by another country to impose some disability on us because of this tunnel. I might add that once privately the late Lord Haig told me he had seen a letter of mine in the newspapers opposing the construction of the tunnel, and he said: "If you want support for your opposition, I would support you. I entirely oppose the idea." One would imagine that if any man would have valued the construction of this tunnel it would have been Lord Haig. I therefore trust that there will be no reason advanced why this weakening of our defensive system should be approved. I hope we shall have an answer against a tunnel from the Government and that the reason will be that the construction of such a tunnel would not add to our security.
LORD MOYNE: My Lords, it seems to me that the case for the Channel tunnel has been completely shattered by the development of the danger from the air, because surely in war-time now it would not be a question of using the tunnel: it would be a question of trying to keep it open. It is absolutely certain that if we want to keep up regular and safe communications with the Continent under modern conditions it should not be by a tunnel but by means of ships. If we had a tunnel, is it not perfectly certain that all our Channel communications would fall into disuse? Our docks, our quays, our railway system would rust; ships would be laid up, and no longer built, and we should find ourselves entirely without the resources upon which we depended
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so vitally in the last War. We do not oppose the Channel tunnel to-day because we fear the danger of any difference with our French neighbours; it is because we want to be able to keep in touch with them, and because we know that the traditional method of sea-borne commerce and sea-borne communications is the only safe way.
THE EARL OF ERNE: My Lords, in 1930 the Government issued a White Paper on this subject. In it there is a very full statement which I need not go into in detail, but the conclusion of it was, briefly, that having regard to the element of doubt indicated in the Report as to the feasibility of construction (a pilot tunnel having to be driven through first), the weakness of the economic case, the great cost (which would be £30,000,000), the long period which the capital expenditure would take to fructify, and the small amount of employment provided in comparison with the expenditure, there was no justification for a reversal of the policy pursued by successive Governments for nearly fifty years in regard to the tunnel. The policy of the Government to-day is exactly the same as it was in 1930.
The noble Lord, Lord Kilmaine, thought that in peace time the Channel tunnel would be a great benefit in improving communications between England and France. It is generally admitted that the tunnel would largely increase the number of passengers crossing the Channel, but doubts have been expressed as to whether this would prove an economic advantage to this country. The number of British passengers going abroad for purposes of pleasure would be increased, but this would be an economic loss to this country, and it would require a substantial alteration in the proportion of foreign and British passengers, of which there is no evidence, to ensure any appreciable benefit to this country.
The noble Lord went on to say that the development of air power makes it more important than ever that there should be communication between England and the Continent immune from air attack. On that point the noble Lord, Lord Moyne, rather bore out what I am about to say, that it cannot be overlooked that the entrance to the tunnel would be specially liable

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to attack from the air, that additional air forces and anti-aircraft defences would be required in connection with the tunnel, and that the cost of such an addition must be added to the estimate of defence requirements. In the event of an international crisis, the existence of a tunnel would almost inevitably lead to a public demand for measures whether of naval, military, or air defence, which would tend to concentrate an undue proportion of our defensive resources in the region of the tunnel, to the detriment of the general defence of the country. The Government are not aware of any overwhelming advantages which the tunnel would have in peace time to outweigh the disadvantages which have been indicated. Therefore the view of the Government is that nothing has occurred since the issue of the White Paper in June, 1930, to cause them to reconsider the attitude then adopted.

HISTORICAL FILMS.
VISCOUNT MERSEY VISCOUNT MERSEY rose to ask His Majesty's Government whether they will consider instituting some form of control over the historical accuracy of films produced or shown in this country; and to move for Papers. The noble Viscount said: My Lords, I put this Question down because I thought it was deserving of some consideration by your Lordships, but I do not in any way wish to appear immoderate in putting it forward. Your Lordships know what the position is at present. Films are controlled by a censor who is appointed by the film industry. The censor is a noble Lord, a member of this House, and I need hardly state that anything that I am going to say to-day is not to be construed as criticising Lord Tyrrell in any way. We are all conscious of his very great abilities and his very great experience. Still he is appointed and paid by the film industry and any advisers he may have are appointed by him.
It seems to me that the present position of films in this country is not stationary. Films are developing more and more, and we can look forward to a time when they will be a very considerable element in the education of the country. In certain directions the greatest care is taken about the preparation of films. A film on botany, or on
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agriculture, or on natural history, or on sociology is regulated in the most careful way, and when we see films of that nature probably everything that we are shown is correct, or as near correct as it can be made. But when you come to the question of history and anything dealing with our own past in this country, a very different case arises. The film then is apparently put together in the most casual way. I am not suggesting that there should be any meticulous accuracy over the control of films, but I think that the main outline, the main features presented, of our own history ought to be substantially correct. I do not want to make use of this place to make an attack upon any particular film—that would be, I think, an unfair thing to do—and also, naturally, one does not want to say anything that might in any way militate against the success of films which are produced in this country; but I must give one or two instances. I will give two instances, one of opinion and one of fact. They both deal with the Tudor period of history, so that I am not coining too near to the present day.
In a film shown some little time ago describing the life of King Henry VIII, the general attitude in which he was shown through the film was that of a comic buffoon. Well, whatever King Henry VIII was, I am sure your Lordships will agree he was not a comic buffoon. There was another film more recent, giving the life of Mary Queen of Scots. This instance is one of a matter of fact. On the night before her execution at Fotheringay Castle, Queen Elizabeth was made to go into Mary's cell and have an altercation with her. It is common knowledge to those of your Lordships who are interested in the history of Queen Elizabeth and Mary Queen of Scots that they never met in their lives. Those are two small instances. I know that it is not an easy thing to control the accuracy of history when shown in the theatre or on the screen, and history is not necessarily bad because it is a little romanticised. I learnt a good deal of the French history that I know from the romances of Alexandre Dumas.
dare say it may be alleged in reply that Shakespeare and even Homer were not strictly accurate in the history they handed down the ages.

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But the modern compiler or composer—I think that is the right word, not producer—of films is not as a rule a Shakespeare or a Homer. I do not think he is in that category. I doubt if anybody in this present Government, which is so often supposed to rival that of the late Lord Grenville, could give straight off the names of even two prominent film composers. All I would advocate is that if some form of control is to be set up, that would be an opportunity of attaching to the proposed board some official, say from the Board of Education, who would be able to advice the Board when a film manifestly traversed the degree of accuracy that ought to be observed. Supposing one carried the case a little further, what sort of inaccuracies are permissible? For instance, if there was a film of the Napoleonic Wars, would a film showing George IV riding about the field of Waterloo—which I believe he always said he did—with the Duke of Wellington be passed? Or, to come a little further down in history suppose we had a film of the Boer War, would it be permissible to depict an interview between President Kruger and Queen Victoria? I presume there would be a limit somewhere. Though what I have suggested may represent a reductio ad absurdum, there is I think a great chance of young people, whom we want to interest in the history of this country and who should have a proper understanding of that history, not being taught the truth.
The noble Marquess who is going to reply has got I think a rather difficult task before him. I do not expect him to do the impossible. I am not expecting that a plan should spring from his head fully armed like a modern Minerva. But I wish to ask him three questions, and if he will answer them affirmatively I shall be quite satisfied for the present. I would first ask him if he agrees that the film is at present, and is likely to be in the future, an increasing educative medium. The second question is whether he agrees that the Board of Education is to a certain extent responsible for the education of the young in this country. The third question is whether he agrees that comparatively true history is better than garbled history. I see on the other side of the House my noble friend Lord Moyne, whose Report I have read with the greatest interest. He, of course, has
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dealt with the film question chiefly from the commercial point of view, but in his recommendations he does advocate the formation of a board. I think that if the Government consider adopting any of his recommendations, which I hope they will do, that would be a very appropriate moment to consider also the suggestion I am putting before your Lordships to-day. I can quite understand that the theatre would necessarily have to be considered to a certain extent, and I tried to induce my noble friend the Lord Chamberlain to come here this afternoon, but he had other and more pressing occupations. That is all I wish to say. I do not press for any action. I merely want to put the question forward so that it may be considered. I beg to move.
LORD MOYNE: My Lords, it is quite true that for some months past I have been listening to evidence about the position of the British film industry, and the Departmental Committee was, of course, very much concerned with the interests of the public—much more concerned with the interests of the consumer than of the producer of films. But although we had brought to our notice criticisms which are. familiar to us all about bad history in films, we did not feel it possible to make a recommendation on that matter. Judging by the very great output of historical works it must be a very general complaint which is being voiced by the noble Viscount, that the public suffer from very misleading suggestions in the films, and I fear also on the stage. That, I think, has always been the trouble. If we had had a censorship it is possible that, we should not have had some of Shakespeare's plays. I am told that many aspects of history portrayed in Julius Caesar, King John, Richard III and Henry VI find a great deal of criticism among learned historians. I think it would be an extremely difficult matter to exercise a censorship which would be generally acceptable. After all, history is not an exact science. It is largely a matter of presentment and opinion, and who is to distinguish between genuine opinion and deliberate romantic invention? I say this not because of lack of sympathy with the noble Viscount's object, but because I really do see enormous practical difficulty in exercising anything in the way of historical censorship.

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The Departmental Committee to which the noble Viscount referred has not made any recommendation about censorship. That is a matter concerning not only the Board of Trade by whom the Committee was set up but other Departments and the Committee left it an open question. I want to make it quite clear that in our recommendation for a board we did not suggest any general censorship of films. We only recommended a quality test to prevent fraud on the quota system. We had overwhelming evidence that the quota system has been turned into an absurdity and a reproach to British films by the production of a large output for the convenience of foreign producers, enabling them to comply with their quota requirements by offering through the renters films with no sort of expectation of ever being thrown on the screen. It was suggested to us that this fraud could be checked by a cost test. That would be very convenient to foreign producers for reasons which I need not go into but which are obvious with the interlocking arrangements of to-day, which would not have put the large producers to any expense or inconvenience or have compelled them to make any change in their present system. We have found also that any cost test would inevitably need to be supplemented by some sort of quality test as well, because you have good films that are very cheap and bad films which are extravagantly produced. So you would have to have some kind of quality appeal to include the former and exclude the latter. We felt that, having faced the necessity of a quality test under certain conditions, the best way for us would be to ensure that all films ranking for quota should be certified as up to a reasonable standard of quality.
This does not mean that all British films are going to be tested, because if they are not offered for the renter's quota they need not come before this quality tribunal. Nor does it mean that all foreign films are going to be looked at—and of course there is just as much and perhaps more bad history from overseas than is ever produced in this country! I felt bound to say this, because I do not think there is an easy way out by means of a board. I do not want for one moment to suggest that the matter is not of grave importance to the film-going public or that if a solution can be found,
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even if it is only a partial solution, the Government ought not certainly to adopt it. Perhaps something could be done by submitting scenarios beforehand and giving some encouragement to those producers who adopt suitable methods to avoid historical blunders and imaginative invention. But I do not think there is any easy way out, and I am quite certain that it is not practicable, without enormous public controversy, to put the task of historical censorship upon any board or body of people, who would necessarily disagree among themselves.
LORD STRABOLGI: My Lords, the last words of the noble Lord who has just spoken will, I think, be re-echoed on this side of the House—that is, with regard to the great difficulty and complexity of this subject. I just want to make our own position clear. We do not want a Government censorship of films, and that feeling is, I hope, also supported by your Lordships in all parts of the House. At the same time we feel that there is a good deal in what the noble Viscount who introduced this Motion, Lord Mersey, has said, because of the great educational value that such films should have. It is quite the pleasantest way, I suppose, of learning history, and it does seem a pity that it should produce garbled history.
The people who produce these films have of course only one object in view, naturally, for they are business men; they want to make money, and they therefore want to find what will suit the public taste. Would it not be possible to encourage some voluntary form of control within the industry in this country? The very knowledge and the very fact that such a control existed would surely cause great accuracy to be exercised in the preparation of scenarios. That is the suggestion that I would venture to make, and we will certainly listen with very great interest to what the noble Marquess has to say, as I hope this matter has really engaged the attention of His Majesty's Government. Might I also for a moment address myself to the Secretary of State for India? I know that the matter of films exercises the India Office—not this particular matter perhaps—and surely films shown in India, which are supposed to represent great epochs in British history and which probably represent the first that 90 per

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cent. of the audience have heard of those episodes, might at least be presented with accuracy.
THE EARL OF CRAWFORD: My Lords, I just want to say how very glad I am that the noble. Viscount opposite should have raised this matter. I somehow feel that at the present stage he will not get very much satisfaction from any pronouncement of the Treasury Bench. That, however, doss not make the subject any less important; its importance is really incalculable, and I think it is of growing importance as well. If one contrasts the recklessness of film presentation with the scrupulous care that is shown in broadcasting in this country, one must be conscious that somehow or other it ought to be possible to regulate and to control the films. That is possible in broadcasting to a lesser degree, but at any rate to some degree, and it ought to be possible in films. The film is potentially a more powerful agent than broadcasting. Segnius irritant, etc.; and for that reason alone it is incumbent upon the Government to do what they can to preserve and protect public opinion, public education and public sentiment against a very great danger. I will merely conclude by repeating that, in spite of what my noble friend beside me said, I think there was in Lord Moyne's statement a very acute consciousness of a danger which for other reasons it was not within the province of his Committee to investigate.
THE MARQUESS OF DUFFERIN AND AVA: My Lords, I think we are all agreed that the noble Viscount who has raised this matter has made a very interesting speech and one which has dealt with some of the most fundamental questions relating to art, to truth and to history. He will therefore forgive me if I in my turn am a little fundamental in replying to him. He has asked me three questions, and I think it would probably be best if I answered those questions and in so doing covered the whole ground. He asked me first of all whether I think, and the Government think, that films are likely to influence people's views of history. To that question there can only be one answer, and that is, Yes. It is perfectly obvious that the films which a child sees are going to colour the whole
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of his subsequent view of history as taught to him in the classroom. But, as has already been pointed out, that is no new development. The child of fifty years ago, or even of twenty years ago, had his view of history equally coloured by Walter Scott, by Dumas, by any number of authors who, brilliantly and delightfully as they wrote, undoubtedly did not make accuracy their chief stock-in-trade. That was not what they sold. Therefore, my Lords, one can exaggerate a little the danger of what I might call a romantic presentation of history through films, because every child has always had history romantically presented to him through the novel.
The second question that the noble Viscount asked me was whether the Government was interested in the education of the country. To that I say again that there can only be one answer, Yes. The Government, moreover, is fully conscious that the film is an instrument of education the potentialities of which are still almost unexplored. At the same time, however, even the purely educational films are now developing very fast, and local authorities are devoting more and more attention to the possibility of using these purely educational films in the classroom itself. The noble Viscount remarked that the educational film per se was perfectly accurate. He said that immense care was taken over the production of such films; but of course, as he is perfectly well aware, those films are accurate not from any censorship coming down from above and saying that one cannot produce a film representing as a lupin what is obviously a primrose; they are accurate for the simple and commercial reason that the producers are out to make money and the films will not sell unless they are accurate. The competent authorities who choose them will not buy them. That is the simple reason why the educational film is accurate. I am going to hinge that on to something which I am going to say later, and I say that the most effective censorship is educated public opinion. I think we can draw a conclusive lesson from these very educational films as to the sort of censorship at which we ought to aim if possible.
Finally—and this brings me to the largest question that has been put to me —I am asked whether I believe that true history is better than false. Again I reply Yes. But what is true history?

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Ideas of history vary with the individual. The noble Viscount may well have been brought up on "Little Arthur's History of England"; I relied chiefly on Green. When you find such varying views of history, who is going to state what really is true history? I will say this to the noble Viscount, that in my view it is not of great importance whether romantic mythical incidents appear as related to the people of this country. Everybody's view of history really is a confused mixture of pictures of incidents which probably never occurred. The picture of Raleigh casting his cloak before Queen Elizabeth or of William Tell shooting the apple off his son's head—all sorts of incidents of that kind may be perfectly untrue, but I cannot admit that these romantic episodes, whether true or not, are doing any great harm. What matters is not so much whether or not certain mythical incidents have taken place but—and this is where I believe that they may play a disastrous part—whether the public get a wrong perspective of past events. That is why the examples mentioned by the noble Viscount, of Queen Elizabeth meeting Mary Queen of Scots before the latter's execution, and the film of Henry VIII, may be so important.
It is totally impossible to understand the Reformation if you think that Henry VIII was nothing but a gluttonous fool. That would seem to be obvious. From that very example I think the noble Viscount will see the extreme difficulty of the course which he wants the Government to adopt. Whether you agree or disagree with the history taught by the film of Henry VIII, where is the censor going to step in? Where does he say: "You have chosen to select certain traits in a past monarch's character which in my opinion you have greatly exaggerated, and have cast the whole of your history out of perspective"? Who is really going to take the responsibility of taking that course? After all, if a film of a history written by Gibbon were made, a great many noble Lords who are good Churchmen would profoundly disagree with its accuracy, and probably rightly so. If a film were made of a history by Macaulay a number of good Tories would profoundly disagree with almost every word. Where, really, is the censor going to feel himself strong enough to step in?
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I profoundly sympathise with the object of this Motion, but I do feel that there are grave, practical objections which make it extremely difficult to devise any plan which will enable either a Government, or any statutory board or body, to prevent people from taking artistic licence to modify the events of history to suit their own purposes. Therefore, my Lords, I would repeat that much the best censorship you can have is public opinion itself. Any other form of censorship can only be of a negative character. It cannot create good films, but only prevent what offends public taste. It is necessary that you should have some form of censorship to prevent that happening, but I do ask your Lordships not to assent to any proposition which would suggest that it is possible to answer Pilate's question by a Commission.
VISCOUNT MERSEY: My Lords, I am very grateful to the noble Marquess for what he has said. With a great deal of it I agree, and the dialectical part of it I admire. I am satisfied with his answer at present. I would only like to clear myself by saying that I am not a bureaucrat, I am not a dogmatist, and I hope in this case I am not a visionary. I beg leave to withdraw my Motion.
Motion for Papers, by leave, withdrawn.

DRAFT UNEMPLOYMENT INSURANCE (PRIVATE GARDENERS INCLUSION) ORDER, 1936.
THE PAYMASTER-GENERAL (LORD HUTCHISON OF MONTROSE): My Lords, I beg to move that the Draft Order which stands in my name be approved. Noble Lords will recollect that when the Unemployment Insurance (Agricultural Workers) Bill, which is now an Act, was before the House, various noble Lords pressed the Government to include private gardeners within the scope of the scheme. I recollect Lord Phillimore, Lord Radnor, Lord Mansfield and others pressing the Government on that point. It is also within the recollection of noble Lords that I said then that I had the mind of the Minister in saying that he wanted further information and examination of this subject before these gardeners could be included in the Bill, but he promised that the question

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would be put before the Statutory Committee, and that if and when the Statutory Committee reported favourably he would at once table an Order. The question was put before the Statutory Committee on April 23. After a very careful examination they came to the conclusion that it was desirable, and on July 3 they issued a Report to the Minister recommending that private gardeners should be included in the scheme. I may say that the numbers are estimated to be about 125,000. The Treasury have approved of the scheme and intimate that it will cost them somewhere about £100,000. I do not think there is any disagreement amongst your Lordships as to the necessity for this Order, and I can only conclude by saying that I have great pleasure in recommending it for your Lordships' approval.
Moved, That the Draft Order, as reported from the Special Orders Committee on Tuesday the 1st instant, be approved.—(Lord Hutchison of Montrose.)
On Question, Motion agreed to.

ARBITRATION BILL. |H.L.
Order of the Day for the Second Reading read.
LORD ASKWITH: My Lords, this is a very short Bill of five clauses, but the whole matter is in Clause 1, the rest being purely formal. The principle of the Bill is to prevent parties to contracts from acting as umpires or arbitrators; in fact, to prevent a person being an arbitrator in his own cause. The late Lord Bowen referred to one of these contracts as "a curiously coloured contract" and spoke of human weakness and preconceived opinion. Clause 1 comes to this, that if in a written agreement it is laid down that future differences shall be submitted to arbitration, such a provision
"so far as it provides that a party to the agreement or any engineer, architect, surveyor, officer, servant or agent employed by him shall be the umpire or sole arbitrator shall be void."
In that case there are three alternatives provided. They can agree upon a new umpire or sole arbitrator, or such a person may be appointed by a third party, as is very frequently the case—somebody nominated by the president of one of a number of associations or societies—or, failing either of these two courses, either
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party can apply to the Court, and the Court may on such application appoint an umpire or sole arbitrator in place of the person mentioned in the agreement.
That is the form—a good type of clause —adopted by such railways as the London and North-Eastern Railway, by such bodies as the River Douglas Catchment Board, the River Nene Catchment Board, the War Office, the Post Office, and the Office of Works and the Ministry of Transport; also by the Association of Consulting Engineers, by the Institute of Electrical Engineers, I think by the Mechanical Engineers, by the Royal Institute of British Architects (who have been improving their clause for years, and in 1931 very largely met the desires of their contractors, though the clause might be yet further improved), and by the Institute of Structural Engineers, as well as by many others. The reasons why these clauses have been objected to have been shortly put before me by the Structural Engineers. They object to the employer's engineer giving a final and conclusive decision on every matter arising. That is a bad contract; and a second bad contract is when the engineer has the power, at the instance of the employer only, to refer questions to an independent arbitrator, while the contractor is given no power to refer to an independent arbitrator. A third bad clause is one in which, while there is an independent arbitration clause, that clause is rendered illusory by all the material points being excepted and reserved for final and conclusive decision to the employer's engineer.
As an instance of the type of bad clause, there has been put in my hands a draft contract which is being sold by a reputable stationer in Chancery Lane, and this gives an instance of what a clause can be. It says:
"If any dispute or difference shall arise between the contractors and the council touching or concerning the works hereby contracted to be done or any altered additional or omitted work or in anywise relating thereto such dispute or difference shall be left to the decision of the engineer whose decision shall be final and conclusive between the parties hereto and shall not be impeached in any Court of Law except on the ground of fraud or collusion."
It is known to any one who has had to do with drafting of memoranda and articles of this sort how, when a draft clause is put before them, people are like

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sheep, so that it gets into common use as this clause has been getting into common use. The reason why contractors accept such an objectionable clause is that it is said that if they do not like it they should not enter into the contract containing this clause. But their answer is that they are in fact given little opportunity of having anything to say on the conditions of the contract, which is drawn up by the employer and issued as the conditions on which all contractors are invited to tender on a competitive basis.
Agreements are not always voluntary even though they seem to be voluntary, for contractors are faced with the alternative of going without work or risking the acceptance of unfair conditions of contract, which employing authorities frequently refuse to modify. The scales are weighted in this way against individual contractors, who have often to accept contract conditions which they do not like in the hope that the unacceptable conditions will not be used oppressively against them. These hopes are only too often disappointed. The reason why the employer's engineer should not be the sole arbitrator is this. He cannot be expected to be impartial and unbiased in matters which may prejudice his employers, and still less in matters which may involve his own professional competence and professional reputation. He is deciding between his own paymaster on the one hand and the contractor on the other. He is an advocate of the interpretation which favours his employer, and therefore cannot fairly be a judge between that interpretation and the contractor's interpretation. He will often be the real defendant where the point at issue is his own alleged negligence, neglect, or delay or where his own certificates, opinions, decisions, requisitions, or notices are under review. How can he be an unbiased judge in such cases? It is an unfair burden. The contractor's security and whole financial interest may be at the mercy of his employer.
Judges of the High Court have often adverted to this kind of difficulty. I cite but one, which was given by a Judge of noted skill some years ago. He remarked that in a case of this kind the arbitrator
"would have a difficulty in separating his two duties, and a gentleman who possibly is extremely skilled in his profession is very likely to confuse the two portions of his
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duties; and, having to obey and follow the direction of one of the two parties in reference to the great proportion of what he has to do throughout the business, he falls into the way of taking a certain amount of instructions from them with reference to other parts of his duties."
That opinion, and the view in favour of this Bill, was strongly expressed to me by my noble friend Lord Atkin, who un-fortunately this morning telephoned to me to say he was laid up with a chill but authorised me to state that he strongly approves of the Bill.
There are a number of good clauses. On the other hand, there are very bad clauses. After two bad clauses, a certain corporation put in this:
"In case any question, dispute, or difference shall arise between the employers and the contractor, not already hereinbefore provided to be settled in the manner set out in the two preceding clauses, such question, dispute or difference shall be referred to the engineer as arbitrator, and in such case the employers shall not be liable in respect of any claim by the contractor unless and until the liability of the employers and the amount of their liability in respect of the claim shall have been awarded by the arbitrator whose award in such case shall be a condition precedent to any liability of the employers or any right of action against the en plovers in respect of such claim."
This was strongly objected to by the civil engineering contractors, but the corporation would not even see them on the point.
Another one was that of a water board:
'The engineer shall be the exclusive judge upon all matters whatsoever relating to the construction, incidents, and consequences of this said plans, drawings, specifications, bill of quantities, and other documents of this contract or to the execution of the said works or otherwise, howsoever arising out of or connected with the contract, and the certificates of the engineer under his hand shall, so far as they respectively extend, be binding and conclusive on both parties. The engineer may from time to time modify any preceding certificate or certificates by any subsequent certificate."
A similar bad clause existed on the London and North-Eastern Railway:
"All questions, matters, and things touching or concerning the contract shall be decided by the engineer in his sole and absolute discretion, and his decisions shall be final and without appeal."
A contractor in a case like that has absolutely no chance. The London and North-Eastern Railway, however, when approached by the constructional engineers and other bodies of engineers, have entirely modified that clause and

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provided for independent arbitration. There are a large number of good people and also a large number of bad, and it is to induce the bad to conform with the good, and not to allow this bad practice to continue, that this Bill is brought in.
I have a very large number of letters in support of the Bill which I need not read to your Lordships, except, possibly, a few specimens. The Federation of British Industries has just held a full meeting, and I am informed that I have authority to say that they entirely support the Bill. I have a letter, too, from the National Union of Manufacturers to say that they are prepared to support the principle of the Bill. They add: "You may say so in your speech in the House of Lords." The Royal Institute of British Architects inform me that the Bill has been submitted to the council at their last meeting, and the writer says:
"I am very glad to inform you that the Council of the Royal Institute agreed to authorise you to state in the House of Lords that they approve of the Bill and its objects."
The Institute of Structural Engineers state that
"this Institute will give their moral support to the proposed Bill to amend the law relating to arbitration."
The Association of Consulting Engineers state that
"the principle of the Bill has the strong support of the Committee of the Association."
Then the Council of the Institution of Civil Engineers suggest that, in addition to an engineer-employer not being allowed to be an arbitrator, no large shareholder in a company should be allowed to be an arbitrator, which would be an addition to the Bill. They allude to various points which they think they will have to consider but which really are not touched by the Bill itself at all. They support the principle of the measure. The Society of Incorporated Accountants and Auditors do the same. The Institute of Arbitrators and the National Federation of Building Trades Employers also support the Bill. On behalf of this last-mentioned body it is stated:
"My Federation not only approve the Bill in its entirety, but also wish to express their grateful thanks to you for bringing it forward. The proposals and the method of approach have all met with the entire approval of this Federation. This Federation has about 10,000 members, and my
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council speak with emphasis and conviction on their behalf."
The Chartered Surveyors' Institution, the Civil Engineering Contractors, the British Electrical and Allied Manufacturers Association, the Association of British Chambers of Commerce, the London Chamber of Commerce, the National Federation of Specialists and Sub-Contractors, and so on, either by resolutions of their councils or, in cases where there has not been time, by letters from their Chairmen, say that they fully approve the Bill. In fact, I may say, in the words of the National Federation of Specialists and Sub-Contractors, that "it would remove an unfortunate and unfair state of affairs." I do not think I need trouble your Lordships with any more of these lists of supporters. I have put shortly before the House what the objects of the Bill are, and I have read the reasons why it is so much favoured by all these people. It removes a difficulty. I have had no word of dissent from the Bill. There is evidently an evil that requires to be stopped, and I beg to move.
Moved, That the Bill be now read 2a.—(Lord Askwith.)
LORD SNELL: My Lords, I do not intend to oppose the Second Reading of this Bill because it affirms the entirely equitable principle that a man should not be a judge in his own case and also affirms that no one whom that man controls should be absolute judge. To that extent there is no objection in principle to the passing of this Bill providing that its operation is somewhat limited. I am not for the moment speaking on behalf of the Labour Party, which has not had an opportunity to consider this Bill, but I do know, I think, what is the mind of local authorities in regard to this problem. They would not, I believe, raise any objection to it provided that the principle only applies in those cases in which any contract or other agreement specifically lays it down that certain questions of difference shall be submitted to arbitration.
It frequently happens that contracts are entered into by a local authority which provide that a chief engineer or other executive officer concerned shall be the sole judge in certain matters, such, for instance, as to whether any given material is or is not satisfactory. Other like matters include standards of

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workmanship, the removal and re-execution of any work, or making good defects. Matters such as these have always been considered as questions that should be excluded from the scope of arbitration, and it would not appear that the Bill as it is drawn, so far as I understand it, could diminish in any way the sole discretion of the council's officers in regard to such questions. Your Lordships will immediately see the importance which local authorities are likely to attach to this matter. Members of borough, county and urban district councils are not experts in regard to the quality of material and the many technical matters that they have to consider. They have to rely in great part upon the judgment of their executive officers, and it is important to them, I think, that nothing should be done which would prevent local authorities from asking their technical advisers to get on with the work.
The result of this Bill might be to delay the execution of contracts in great part, and it is of very great importance as a rule for local authorities to get their contracts completed as speedily as possible. Therefore, on the assumption that there is no objection to be raised to the Bill in principle, we would only ask that these matters of detail should be considered. In the event of your Lordships giving a Second Reading to this Bill, someone might have to consider whether any modification in detail was called for having regard to the practice of local authorities in this country.
LORD GAINFORD: My Lords, to-day I attended a meeting of the executive committee of the Federation of British Industries when this Bill was fully considered by those present. It had been previously considered very carefully by their contracts committee. They were unanimously in favour of the Bill, and they hope not only that it may receive a Second Reading and be passed through this House, but that the Government may find opportunity of enabling it to pass through another place on to the Statute Book.
LORD MARKS: My Lords, I support this Bill as an engineer, having had experience in contracts which have given me difficulty owing to the fact that the person for whom work was being done has insisted upon this peculiar system
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that the engineer himself shall determine all questions of dispute between himself and the contractor. There are many questions which arise in connection with every contract that call for some variation in the method of the work that is being done. There may be a question of difference between the engineer and the contractor or the architect and the builder which can be readily adjusted, and would be easily adjusted were it known that in case of any difficulty between the two it could be referred to a third person, an outside person, to determine the matter in dispute. But when there is a rigid contract under which the contractor is bound, whatever the conditions be, to accept the decision of the engineer or the architect, it makes for an arbitrary interference with the ordinary work which is being done, and at least very considerably delays the execution of the work.
I have had contracts of my own in which I have objected to certain things and the contractor has objected to other things. When it has been left solely to the decision of the engineer there has been a feeling of restraint on the part of the contractor and of embarrassment on the part of the engineer; but where-ever there is a difficulty between two persons, one the expert and the other the contractor, and they can feel that an outside person can settle the matter, there is a more friendly feeling existing between the contractor and the engineer or the architect and the builder as the case may be than is possible when the architect is the sole arbiter all the way through or the engineer is the master of the position. I support this Bill because I believe that it will make for fair dealing between contractor and engineer, and, further than that, because it may make for a better and more friendly feeling between contractor and engineer, knowing full well from the start, as they will do, that if there is any unreasonableness on either side some independent person, not the paid servant of one, will come in to settle the matter in dispute. I also support the Bill because I am sure it will lead to greater expedition in the carrying out of contracts, will remove any suspicion there may be otherwise at the beginning that one is the master and is an arbitrary master, and will make the contractor feel throughout that he will have a reasonable chance of his work being

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properly judged not by the man who is in charge of it but by someone else who has equal knowledge of the work that ought to be done.
I also support this Bill on behalf of my own profession. I have been practising as a civil engineer for fifty years, and I know something of the difficulties that always arise when you have a running contract and the embarrassment is thrown upon the owner of requiring that his servant shall be the arbitrator in any dispute. I hope this Bill will be considered as a Bill to promote fair dealing between the master and the workmen and between the agent and the owner of the building which is being put up. The necessity of it is now recognised by good firms and large concerns, but, unfortunately, the whole of the country is not equally placed. There are contractors who are willing to agree to some of the things that are done and who enter into contracts because they are afraid of losing a job; then when they get on the job they commence to grumble and give considerable trouble to the engineer, due to the fact that they have undertaken to do something they are not capable of carrying out. I hope the Bill will be looked upon as one bringing about fair dealing between one man and another, and I support it very heartily.
LORD AMULREE: My Lords, I also support the Bill. In addition to the large number of bodies quoted by my noble friend Lord Askwith in support of the Bill, I may mention that another important body, the Building Industries National Council, also supports it. This body is composed of architects, building contractors, quantity surveyors and others interested in the building industry. With reference to the point raised by the noble Lord, Lord Snell, I think from my reading of the Bill that his apprehensions are met. As I read the Bill it is only certain specified differences that are to be referred to an independent arbitrator, and all the minor matters of which he spoke are reserved for the decision, not in the sense of arbitration, of the officer of the local authority. This point has been under discussion between local authorities and other bodies for a number of years. As far back as 1925 there was a meeting between representatives of the Association of Municipal Corporations, the British Water Works
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Association and the Institution of Municipal and County Engineers on the one hand and representatives of the London Chamber of Commerce and the Federation of British Industries on the other hand. The question discussed at that time was whether a certain form of agreement should not be drawn up which might be applicable to all building contracts with which local authorities have to deal.
As a matter of fact they were not able to arrive at any exact form of agreement, but the opinion of the Association of Municipal Corporations is, I venture to suggest, embodied in this Bill. May I quote from the Municipal Review, which is the organ of the Association:
"Whilst we recommend the acceptance of the principle of a. reference of disputes to an independent arbitrator, we would add that in most contracts there will be sonic questions which of necessity should be excluded from the arbitration clause and should be determined by the appropriate officer of the corporation. To take a common example, a contract for the construction of works may provide for the mixing of cement and concrete in correct proportions and for its use immediately after being mixed. In a case of that kind, the engineer ought clearly to have power to condemn any concrete which, in his opinion, does not comply with the conditions of the contract; it would he impracticable in such a case to refer the question to an arbitrator."
That discussion having taken place and that recommendation having been made in 1325, there was in 1931 a further discussion between the Federation of British Industries and the Association of Municipal Corporations and the Association adhered to the same opinion. They were still of opinion, while agreeing to the general principle of a reference of disputes to an independent arbitrator, that certain matters should be reserved for the determination of the appropriate officer of the corporation.
As I read the Bill that idea is carried out. The Bill says:
"Any provision in a written agreement made after the commencement of this Act to the effect that all or any specified differences whether present or future shall be submitted to arbitration so far as it provides that a party to the agreement or any engineer, architect, surveyor, officer, servant or agent employed by him shall be the umpire or sole arbitrator shall be void. …"
The Bill therefore contemplates that any agreement entered into under the scope

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of the Bill shall be in two parts, one specifying the matters referred to the independent arbitrator and the other relating to disputes which would come under the immediate survey of the officer of the building owner. In those circumstances I venture to suggest that the points of criticism made by my noble friend Lord Snell have been met by the Bill. Whether the Bill is drafted in proper language is a matter which may have to be considered, but in principle I think the Bill does carry out what he has in mind.
Like my noble friend Lord Marks, I think this Bill, if it becomes law, will have a good effect in ensuring that all agreements and all building contracts which are undertaken shall be carefully drafted before the tender is let out. At the present time in many cases it is the practice to give out work when only the general outline of the contemplated work has been decided upon. A great many details are left to be filled in afterwards. The result is a great amount of delay and a great amount of dispute as to what is included in the agreement. These matters under many contracts are reserved for the determination of the arbitrator or the officers of the building owner. There has been a great amount of dissatisfaction in the past and in many cases agreements have been so hardly driven that many contractors have been brought to the verge of insolvency.
One principal result which may well follow from this Bill, if it becomes law, is the adoption of a scheme well known in Canada and the United States as the time and progress schedule. Under that plan before any work is undertaken the whole scheme of the proposed building is worked out in detail, giving specified times between which every section of the work should be carried out from the excavations to the finishing of the building. If such a scheme were adopted here by architects or engineers questions in dispute would seldom arise because the whole thing would be worked out in detail before the work was undertaken. One good effect of that would be a reduction in the time of building and a reduction in cost. According to an authoritative report there might be expected to be a reduction of one-third in time and a reduction of 15 per cent. in cost. The matter was dealt with at
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considerable length by the Building Industry Council of Review in 1932, and it was reported that work done under such a scheme as this would result in completion of the work in one-third less time and a reduction of cost by 15 per cent. I beg to support the Bill.
THE SECRETARY OF STATE FOR AIR (VISCOUNT SWINTON): My Lords, I think I should perhaps add a few words in courtesy to my noble friend. I am not going to ask your Lordships not to give a Second Reading to the Bill, but my noble friend asked me a difficult question when he wanted to know whether I could guarantee that the Bill will get through another place. That is a guarantee which I am afraid I cannot give. Your Lordships know what a very heavy programme the Government have put before Parliament and I could not possibly give any guarantee of that kind. I would only add that obviously as the noble Lord has put the broad proposition, that where parties really enter into an agreement that there shall be arbitration which everybody supposes is to be independent and then the arbitration is in fact to be carried out by someone who is not independent at all, such an arbitration clause should not necessarily hold good, that is a proposition which everybody could accept. But I am not sure whether all your Lordships are aware that that position is to a large extent met by the amendment made by the Arbitration Act, 1934.
I do not say it goes the whole way that this Bill goes, but this matter was considered, your Lordships will remember, by the Mackinnon Committee, who were rather deprecating altering contracts that people had made, yet thought that there was an evil to be met and recommended that the Courts should have power to set aside an arbitration clause where the arbitrator turned out not to be independent. Effect is given to that recommendation by Section 14 of the Arbitration Act, 1934. I only add that remark so that, either if the Bill did not find favour in all respects in your Lordships' House or in another place, or if time prevented the passage of the Bill, your Lordships might have the consolation of knowing that the evil of which everyone, or nearly everyone, has complained and which it is intended that this Bill should remedy, is already remedied,

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at any rate to a great extent, by the Arbitration Act, 1934.
On Question, Bill read 2a and committed to a Committee of the Whole House.

DEFENCE: BOMBERS FOR THE ROYAL AIR FORCE.
THE EARL OF HALSBURY THE EARL OF HALSBURY had the following Notice on the Paper:—To ask His Majesty's Government what provision is made in the Government programme far conveying by air bombs or other weapons of offence in quantities and in range sufficient to deal by way of reprisal with other countries, and whether, if any such aircraft is provided for in the Government programme, such aircraft comes within the class which to-day is universally known as "heavy bombers"; and to move for Papers.
VISCOUNT MERSEY: My Lords, before the noble Earl puts this Question I should like to raise a point of order. A few days ago the noble Earl put a Question of a somewhat similar nature and the Secretary of State in reply said that he could not answer it because to do so would be against public policy. On that occasion the speech in which the noble Earl put his question appeared to contain information which it might be very undesirable to disclose. Indeed, I am not at all sure that that speech could legitimately have been made outside the confines of this House. I should like, therefore, to ask the Secretary of State whether it is possible on this occasion to avoid a similar risk being run.
VISCOUNT SWINTON: On the point of order, my Lords, the answer is very plain, and I can give it in a very few sentences. The speech to which my noble friend Viscount Mersey has referred was a speech which purported to give particulars of various machines on a partly secret list. The legal position outside this House—and I speak on the highest legal authority I can obtain—is absolutely plain. There are three lists: a secret list, a part-publication list and an open list. No one is entitled to give particulars of performance, load and so on of machines on the part-publication list without the express authority of the Air Ministry. If a firm or a member of a firm gave such particulars, they would be liable to a prosecution under the Official
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Secrets Act, and I am advised that it would be no defence whatever to such proceedings to show that the information given was in fact erroneous. The offence would be the giving of or the purporting to give information about these machines on the secret or on the partially secret list. The information, inaccurate in many respects, purported to be given by the noble Earl on the last occasion was in a number of respects information which, even though it were erroneous, if given by a firm outside would have rendered that firm liable to prosecution. That is the legal position.
THE EARL OF HALSBURY: My Lords, it is rather a novelty in your Lordships' House to ask, on a point of order, whether a Question can be put before anybody has put the Question. I have not asked the Question yet; I now propose to ask the Question.
THE MARQUESS OF SALISBURY: My Lords, I hope that your Lordships and my noble friend will allow me to say a word. This is a case in which the Secretary of State for Air has said upon his responsibility that the information which he fears is about to be disclosed would be against the country's interests; and I understand also that if the information to which he refers were disclosed outside this House it would render the person who disclosed it liable to a criminal prosecution. In those circumstances I would venture to make an appeal to my noble friend. The fear may be exaggerated, but let us not make your Lordships' House an arena in which doubtful matters of this kind shall be discussed.
SEVERAL NOBLE LORDS: Hear, hear.
THE MARQUESS OF SALISBURY: Will my noble friend allow me, as a very old member of this House, to assure him that he will have sympathy in no part of the House if he proceeds with a Question of this kind when he has been told upon the authority and the responsibility of the Secretary of State that to do so would be a profound mistake in the interests of the country? I hope he will not proceed.
THE EARL OF HALSBURY: My Lords, it is absolutely impossible for me, after the appeal by the noble Marquess who has just addressed us, to pursue this Question. Obviously I could not. I have known and respected him so long—and

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known him as the Leader of this House—that on a statement of that kind by him I could not possibly proceed with the Question that I proposed to put. There is, however, one thing that I should like to say, and which I think I am entitled to say, in answer to the noble Viscount the Secretary of State for Air, on a point which he mentioned just now. I think I am right in this; I am fairly certain I said it, and if I did not I will certainly say it now, because I meant to say it then. The information that I gave your Lordships was information which I did not get in this country at all: I got it from outside; I got it from my friends in other countries. I said last time—I know I said this—that I had always found that if I wanted to get information about our Air Force I could get it with greater expedition and greater accuracy abroad than in this country. My Lords, I will not pursue the Question.

BUSINESS OF THE HOUSE.
LORD SNELL: My Lords, I should like to ask whether the Government can give us any information about the future business of the House.
THE SECRETARY OF STATE FOR INDIA (THE MARQUESS OF ZETLAND): My Lords, I am grateful to the noble Lord for giving me this opportunity of explaining the arrangements with which we propose to ask your Lordships to fall in. We are proposing to take the Expiring Laws Continuance Bill to-morrow at 3.45 p.m., when we expect that the debate will centre round the proposal to continue the Special Areas Act contained in that measure. Various Motions in the names of the right reverend Prelate the Bishop j of Winchester, and the noble Lords, Lord Davies and Lord Mansfield, which have appealed upon the Paper, have been withdrawn with this in view. It will be necessary also, I am afraid, to ask the
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House to meet on Friday afternoon next, the 11th, at 3 o'clock, to give the Royal Assent to the Railway Freight Rebates Bill, after which we propose to take the Second Readings of the Public Order Bill and a small measure clarifying a point of doubt which has arisen under the Government of India and Government of Burma Acts. In view of the approaching Christmas Adjournment, it may be to the advantage of your Lordships to know that we shall meet again on Monday next week at the hour of 4.15, when the principal business will be the Committee stage of the Trunk Roads Bill.

CONSOLIDATION BILLS.
The Evidence taken before the Joint Committee from time to time to be printed, but no copies to be delivered out except to members of the Committee and to such other persons as the Committee shall think fit, until further order. Leave given to the Joint Committee to report from time to time.