Lords Sitting of 22 February 1938

Preamble
The House met at a quarter past four of the clock, The LORD CHANCELLOR on the Woolsack.
The Lord Londesborough—Sat first in Parliament after the death of his kinsman.

MR. EDEN'S RESIGNATION.
LORD SNELL: My Lords, I beg leave to ask the noble Viscount the Leader of the House whether he wishes to make any statement respecting the resignation of the Foreign Secretary from the Government. As I understand it, the question to-day is not whether the policy for the defence of which Mr. Eden has made so great a personal sacrifice was right or wrong. My noble friends reserve their right to raise that issue in a definite form on another and an early occasion. This afternoon I am only personally concerned to express our sorrow at the sudden arrest of a career in the growing quality of which most of his fellow countrymen have a rightful pride. It is one of the happiest features of our English public life that we rarely allow our differences in respect to questions of public policy to disturb our personal relationships. The Labour Party aim to maintain that fine tradition. We feel, however, certain that Mr. Eden would not have resigned his great office except under the compulsion of a deep conviction and, as we feel, a sense of inconsiderate treatment.
Those of us who were his colleagues in another place at a time when his qualities were appreciated only by a few discerning people hold him in high regard, and I offer him my sincere sympathy in what must be the greatest crisis of his life. May I not in addition add a hope and belief—perhaps I may in that respect speak for all your Lordships—that his separation from public affairs will not be of long duration? I would also like to add a word of sympathy for Viscount Cranborne in the decision which he felt himself called upon to make. I hope I may be permitted to say that what he has done is not unworthy of the traditions of the family to which he belongs. I do not think I can say more at this stage, my Lords, except formally to ask the

797
question which I have put to the noble Viscount.
THE MARQUESS OF CREWE: My Lords, before the noble Viscount opposite answers the question which has been put in very moderate and sympathetic terms by the noble Lord who leads the Opposition, I desire to add one or two words on the subject. In the first place I think I can say that it is the last desire of anybody on any side of your Lordships' House to add in any respect to the difficulties which His Majesty's Government have to face in foreign affairs, but I think that far from being an embarrassment it should really be of assistance to them to realise, as they must, that there is a large body of opinion in the country which regards with a certain degree of disquiet the holding of conversations at large with a foreign country with whom various differences of opinion exist.
As regards the two Ministers who have found it necessary to leave His Majesty's Government, it is not necessary, I am sure, to add anything to what the noble Lord, Lord Snell, has said of the personal qualities and character of Mr. Eden. He has two remarkable qualifications for the post which he held: a happy faculty for getting on with people, not merely his own fellow countrymen but also those of foreign minds and foreign nationality; and the power of devoting himself, in a degree shared by few, to hard and continual work, which, as noble Lords well know, the Foreign Office nowadays demands more than ever. To what the noble Lord said about Lord Cranborne I would only add this: that he has, in the third generation, shown those characteristics of statesmanship and obedience to the voice of conscience which we have been accustomed in this House to associate with the name of Cecil for a period as long as can be recalled by the oldest member of your Lordships' House.
I have no doubt that the noble Viscount opposite, if he enters at all into the occasion of the resignation of these Ministers, will explain that the position of the Government is that, in engaging in fresh conversations with the Government of Italy, they desire to have a perfectly clean slate to fill. But, my Lords, as may be developed in some future debate, we do not regard the slate as clean. Many things have already been written on it of which we disapprove and of which
798
I have no doubt the supporters of His Majesty's Government also disapprove. It is not possible to compare the present situation with such conversations as were held with France first when Lord Lansdowne was Foreign Secretary, and which were carried on by the succeeding Government, through which a great number of different questions found a happy solution. Nor can the situation be compared with the conversations which were held with Germany a few years before, and which caused the re-arrangement of the German Empire and of ourselves in Africa and included as a mark of good will our abandonment of the island of Heligoland. Those were entirely different occasions from that which obtains at present, and it is not possible to treat them as having any bearing on the present situation.
For the present situation I think one has to consider what have been the reactions abroad to the crisis caused by the resignation of the Foreign Secretary. We see that it has been hailed with enthusiasm by those Powers in Europe who are totally opposed to the ideals and aspirations connected with the existence of the League of Nations. On the other hand, it cannot be altogether a matter of surprise that more than one French journal has recalled in a rather ominous tone the events of 1905, when M. Delcassé was obliged to resign from the French Government, as was generally believed, at the behest of foreign influence. M. Delcassé afterwards returned to a high post in the French Government, as I very well remember, in the years 1914 and 1915. Mr. Anthony Eden, to echo what Lord Snell said and what I am sure noble Lords opposite equally hope for, will, I am sure, return to a high office in the service of the country. I only trust that it will be under infinitely more propitious conditions than those under which M. Delcassé resumed his office in France.
THE LORD PRESIDENT OF THE COUNCIL (VISCOUNT HALIFAX): My Lords, I must naturally begin my answer to the noble Lord's question by saying how warmly I appreciate, on behalf of my noble friends who sit beside me on these Benches, what he has been good enough to say in regard to the personality of our late colleague, the late Foreign Secretary. I do not know that there is much that I can at present add, within

799
the limits of an answer to the question of the noble Lord and to the support given to that question by the noble Marquess, to what is already in your Lordships' possession. I think it is probably convenient, as the noble Lord said, that we should reserve debate on this matter for a more convenient opportunity. If, therefore, I do not answer some of the observations made by the noble Marquess on this occasion I hope that neither he nor anybody else outside this House will imply from that silence that I accept them.
There are, of course, already in your Lordships' possession the letters exchanged between the Prime Minister and Mr. Eden, which were published in the newspapers yesterday, as also the statements made in another place by Mr. Eden and the Prime Minister, which appeared in the Press this morning. I think it is clear from these statements that there is no dispute as to the facts, and I will endeavour to give your Lordships, as briefly as I can, a plain and objective summary of them. On the 10th of the present month the Italian Ambassador conveyed to His Majesty's Government the strong wish of the Italian Government to inaugurate conversations which, as your Lordships will remember, had been suggested as long ago as last July. The Government were of opinion that, provided it was made clear that final agreement depended on our side on a satisfactory solution being found of the Spanish question, and that League approval would be sought by this country for any agreement that might be reached with the Italian Government, it was advisable to take action as early as possible in the sense desired by the Italian Government. On this particular issue, however, Mr. Eden took a different view. While not differing from his colleagues as to the desirability of conversations with Italy, he was unwilling to agree to their inception in Rome now. As he himself said yesterday:
"I do not suggest and I would not advocate that the Government should refuse conversations with the Italian Government or indeed with any other Government which shows any disposition to conversations with us for the betterment of international understandings, yet we must be convinced that the conditions in which these conversations take place are such as to make for the likelihood, if not for the certainty, of their success. I contend that these conditions do not exist to-day."
800
That was a frank expression of difference of opinion between himself and the Government.
Your Lordships will also have observed that the late Foreign Secretary spoke not only of those differences arising out of the question of the initiation of Italian conversations, which he calls "immediate differences," but also of other differences of a fundamental character, which he terms "a real difference of outlook and method" between himself and the Prime Minister. Mr. Eden and the Prime Minister alone can be the judges of what was the actual nature of the impact of mind upon mind in a relationship so intimate as that necessarily existing between a Prime Minister and the Foreign Secretary. I can only speak certainly for myself, but in this I have little doubt I speak also for my colleagues in the Government, when I say that during the years through which we have worked together we have at no time been conscious of the existence of any such fundamental divergence of view between the Prime Minister and Mr. Eden as the words of Mr. Eden would suggest. I have tried, my Lords, to make a plain relation of the facts. Let me state once more, within the briefest compass, the immediate difference which, as I understand, has been the occasion of Mr. Eden's resignation. There was no difference whatever on the broad question of the desirability of conversations with the Italian Government. But the Prime Minister and the Cabinet, with the exception of Mr. Eden, thought that these conversations might rightly be initiated with a plain understanding that certain conditions were essential to the conclusion of an agreement. Mr. Eden, on the other hand, wished to attach conditions to the very initiation of the conversations themselves.
There is only one other observation upon this unhappy matter which I would venture to make to your Lordships this afternoon. There is not one of his late colleagues who has not constantly admired the high purpose, the self-sacrificing devotion and the unflinching courage that Mr. Eden brought to the execution of his overwhelming duties. Nor is this less true—and I associate myself with what fell from both noble Lords—of Lord Cranborne, who has felt obliged also to place his resignation in the hands of the Prime Minister, and in whom, both on his own account and for

801
the sake of those closely related to him in this House, your Lordships will feel an especial interest. The regard in which Mr. Eden is rightly held throughout the country and beyond it is only a counter-part of the affection that he inspired among all those with whom he was associated in office. I perhaps have been as close to him on many occasions as any of his colleagues, but I know there is not one of us who have so lately worked with him who does not deplore the fact that he should have felt it necessary now to sever his relations with us.

WELSH CHURCH (AMENDMENT) BILL. [H.L.]
THE PRESIDENT OF THE BOARD OF EDUCATION (EARL STANHOPE): My Lords, I beg leave to introduce a Bill to amend paragraph (b) of subsection (1) of Section 19 of the Welsh Church Act, 1914; and to move that it be now read a first time.
Moved, That the Bill be now read 1a.—(Earl Stanhope.)
On Question, Bill read 1a,and to be printed.

BLIND PERSONS BILL.
Brought from the Commons; read 1a; and to be printed.
POPULATION (STATISTICS) BILL.
Brought from the Commons; read 1a; and to be printed.
DOMINICA BILL. [H.L.]
Returned from the Commons, agreed to.

EVIDENCE BILL. [H.L.]
Order of the Day for the Second Reading read.
LORD MAUGHAM: My Lords, the object of this Bill is a comparatively simple one. It is to permit certain documents made before controversy of a legal kind has arisen and made by persons with personal knowledge of the facts to be admitted as evidence. I hope your Lordships will not think that the objects of the Bill are in any way technical. The present law is technical, but what the Bill seeks to do is founded on the simplest
802
problems of common sense, as to which those of your Lordships who are laymen are just as fit to form an opinion as any lawyer. Perhaps I may say that on many occasions I have not been able to form the view that common sense is an attribute only of lawyers; I have sometimes taken a very different view.
The object of the Bill is concerned very largely with the facts, firstly, that in the past for hundreds of years our law has on the one hand declined to accept any hearsay evidence at all—differing in that respect from nearly all other systems not founded on our own—and secondly, that it has paid enormous attention to the value of an oath. One may say with some truth that our ancestors believed in oaths. At the present time I think nobody with good sense will say that if there is a statement made by somebody with no motive to tell an untruth, which has been put into writing at about the period when the event took place, it is less entitled to credit and is less probative in its value than the statement made on oath by a witness many years after when the events have become dim in his or her recollection. The curious fact is that, apart from admissions, our law has not allowed to be proved any documents in relation to various private matters other than two sorts of documents. The first is statements against interest, which means pecuniary or proprietary interest; and the second statements made in the course of duty. In both cases the maker of the statement must be dead.
Let me just give your Lordships an example of how limited those exceptions are. Let me take the first exception, the statements against interest. There is a celebrated case of Higham versus Ridgway, a case of an accoucheur more than a hundred years ago who assisted a lady in her delivery and who made a record of it in his books. Being an educated man it was written in Latin, and he noted both the date and the hour at which the birth took place, and he also noted in his book that his charge was what I think your Lordships will think the moderate charge of £1 6s. 1d. Fortunately he had written opposite this the good English word "paid." In the lawsuit in which that document was sought to be introduced the question was the age of this child, who had then, it was alleged, attained the age of twenty-one, and the material question was, Was he

803
born on a particular date in April or on another date in April? and some evidence had been given upon it. The accoucheur happened to be dead. Well then, the conditions were satisfied that an untruth was against interest; because although it was not against his interest to say that a child had been born, it was against his interest to assert that he had been paid £1 6s. 1d.; and accordingly, he being himself dead, the document was admitted and of course was conclusive to establish the date of birth.
What your Lordships will note is that if the doctor had been alive, and if either he had been ill or could not be found, or if he was insane, or if it was too expensive to bring him to the Court and the subject of the case did not warrant his being found, or if he was beyond the seas—in all those cases the document would be rejected. I appeal to your Lordships whether there is any good sense in the notion that the assertion that he had been paid this money added to the truth of the statement, or that you ought not to be allowed to put a document in because the man was not yet dead, but there was some good reason for not calling him; or whether there are sufficient grounds for keeping to the existing law. One of the first things that is sought to be done in this Evidence Bill is to make it clear that if the man is not dead who had made a statement otherwise admissible—if he is unfit, or abroad, or it is too expensive to call him—nevertheless the document shall be admissible in evidence.
The other little story I want to tell your Lordships is about the entry in the ordinary course of business. The leading case there is a case of Price versus Lord Torrington. It related to payment for some beer which had been delivered to his Lordship and it was necessary for the plaintiff to prove delivery of the beer. Well, there was a drayman in the service of the brewer, whose practice it was and whose duty it was to deliver the beer to a number of places in the course of the day, to enter at night in his hook the fact that he had so delivered the beer and the persons to whom he had delivered it. The drayman was, fortunately for the case, dead. Well, that made the entry admissible. The entry was admissible because the person making the statement on the one hand was dead and
804
on the other had made it in the course of duty and, with the event. There again I say it is impossible to hold that there would be no weight in the drayman's evidence if he had made the statement a couple of days later in writing, or if for some reason it could not be established that it was his duty to make this statement. In either case, as the drayman was the person who had personal knowledge of the facts and had no reason for telling an untruth with regard to them, his evidence in a document contemporaneously, or more or less contemporaneously, with the facts ought, I think your Lordships will agree with me, to be admitted in evidence for what those statements are worth.
Now let me go on to tell your Lordships this. The proposed amendment of the law goes a little bit further because it suggests that documents which are not within either of the two exceptions—for instance, not proved to be made in the performance of a duty, not strictly contemporaneous, and not proved to be contrary to pecuniary or proprietary interests—should also be admitted. Let me take such cases as these, which are actual cases. The question may be—it arises in the Privy Council sometimes—whether a particular river is or was navigable or not at a particular date. There is an ancient report made by some person and produced by some public office. You may not be able to prove that it was his duty to make it. In this case the present law would reject it. Take another case. You have the report of a mining engineer, which is, not infrequently, a necessary document in the case of an action for various purposes—for instance, for misrepresentation in a prospectus—and you want to know what reports have been made with reference to a particular property. You may not be able to show that the report was made contemporaneously with the visit to the mine or whatever it was. That would be a reason for rejecting it.
You may not be able to show that the man who has made the report is dead, or if alive you may not be able to call him. I remember very well a case not so many years ago in which the mining engineer whose report it was desired to prove happened to have gone to South Africa. Under the present law you might perhaps take his evidence on commission, but he might be a witness unwilling to give any

805
evidence which might be against the man who employed him. As soon as he is beyond our territorial limits, you cannot compel him to give evidence. But you want to get in the report. The report is in England; everybody knows about it; and you do not want to delay the trial by sending a commission at vast expense, say, to Rhodesia for the purpose of endeavouring to get this man's evidence. I appeal to your common sense to say that that is all wrong. This is a report made by an honest, decent person in performance of instructions given to him by people who are concerned with the case and, for what it is worth, you ought to be able to put his report in evidence. It is quite true that you have not been able to cross-examine him and that to some extent would qualify the value of his evidence, but for what it is worth the report ought to be in. Might I mention this? There is not a country in the whole of Europe which would not allow the documents which the Bill seeks to admit in evidence to be so admitted. It is entirely illogical to take all the steps which we have been hound for so long to employ, with only these two exceptions, for the purpose of enabling documentary evidence to be admitted.
These are the two main objects of this Bill, and although the clauses look a little complex, they are really perfectly simple. The documents to be admitted are admitted subject to a number of safeguards. The maker of the statement has, except in one case of a record with which I need not trouble your Lordships, got to have personal knowledge. If he is alive, and accessible without undue expense, you call him. If you cannot prove he is dead, you still let in his evidence for the reasons I have already mentioned—namely, stated shortly, that he is unfit or abroad, or it is too expensive to procure his attendance as a witness. Your Lordships will remember that a great many of the cases with which we are concerned in this country with regard to law are cases involving quite small sums heard in the County Courts. There may be a question referring to a bill for £20, and it seems to me a denial of justice to say that action cannot be properly brought, or alternatively, cannot be successfully prosecuted if you find you cannot get evidence from some man who has made a contemporaneous statement, but who happens to be in Scotland at the
806
time. That is the main object of Clause 1, with certain safeguards and a discretionary power to the Judge in certain cases to admit such a statement as mentioned in the first subsection, although the maker of the statement is available but not called as a witness. In Clause 2 we are dealing simply with the weight to be attached to the evidence. It is in some cases a safeguard to tell the tribunal that all the circumstances under which a document was made must be borne in mind, because some of the documents may be of exceedingly little weight and others may be of very great probative value.
Clause 3 deals with an odd circumstance, which is that certain deeds have got to be attested and, if attestation by law is necessary, it is necessary at the present time to call the attesting witnesses. These deeds are by no means the most important and by no means the most common. For instance, you might convey property worth £100,000 without an attesting witness at all, but in respect of those deeds where an attesting witness is necessary the present law says that you must call the attesting witness, while in all other cases you prove the execution in the ordinary way. That is illogical. I may mention that it is based on an old doctrine that goes back as far as the law of the Franks, where the attesting witness, having attested, had to be ready, if necessary, to defend his evidence as a witness in battle. That is the sort of relic of antiquity which is embodied in this strange law. With regard to documents, they are now said to prove themselves, so far as execution and so on are concerned, after thirty years. I venture to think that is too long a period. We allow people to gain estates by the operation of the Statute of Limitations after twelve years, and it has been thought fit, after a good deal of consideration, to make the presumption as to documents twenty instead of thirty years. The next clause is only dealing with the question of making rules of court which the bodies who make such rules will be very careful not to misapply.
I hope your Lordships will not think this Bill of mine, in the realm of domestic politics, is of little importance. That is not at all the view I take. We are all of us deeply indebted to the law for living a safe and comfortable life and having a reasonable amount of liberty. I would not like to represent the law as a

807
sort of beautiful guardian angel that watches over all of us, but I hope that, however repulsive you may think the law is, you will recognise that it is of the very greatest value to every member of the public. What I would observe with reference to this Bill, in submitting it to your Lordships, is this, that it is because I am convinced that it will to some extent assist in the attainment of justice, and in quite a number of cases tend to reduce the costs of litigation, that I urge your Lordships to give it a Second Reading. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Maugham.)
LORD ATKIN: My Lords, I am sure all of us will be very grateful to the noble and learned Lord for introducing his Bill to effect improvement in the administration of justice. With certain safeguards which, I think, still have got to be inserted in it, I think his Bill will serve that purpose. At the same time it has to be remembered that this country has won an unrivalled reputation for the administration of justice and for the certainty with which truth is attained in the tribunals of this country, and that is very largely due to the fact that our system of evidence requires the best evidence. I do not think that anybody, I do not think my noble and learned friend is proposing to introduce into our system that system of evidence which is to be found in systems of administering justice over the water. I am bound to say I am conservative enough to think that our own system is unrivalled and has worked very well. Changes no doubt can be made, and improvements can be made. It is probable that the changes in the Bill will not be revolutionary.
My noble and learned friend has not, of course, thought it necessary to point out that at the present moment, according to our procedure, a Judge has got power to order that any facts may be proved by the production of any document or copy of a document, and that would seem to meet a good many of the points to which he has referred. But what one wants to be sure is that there is going to be reasonable certainty in ascertaining the truth. Personally I do not think I like very much the idea that an employee by merely making an entry in his book that he has delivered a cask of ale at a
808
customer's house, thereby affords evidence that he has in fact delivered that cask of ale at a certain house. He may very well have delivered it at the house of a friend of his, and if he is in Scotland apparently nothing more is needed: the entry is evidence that the ale came to the customer. I think, too, I see danger in any provision that in the case of a fraudulent prospectus, the directors who are alleged to have been fraudulent may produce the report of a man who has gone out of the country and who has given them a fraudulent report, and that as long as he is in, say, South America that report can be produced as evidence of facts said to be contained in it. I think myself that would be somewhat dangerous. Yet that is the position.
But speaking generally, on matters of ordinary cost no doubt the proposals in the Bill may produce some alleviation of cost, and provide evidence which otherwise would not be forthcoming. There are, however, two matters which I think are of essential importance. I wish to call your Lordships' attention to them now, and I wish to call the attention of the Lord Chancellor to them, because it is obvious that a Bill of this kind, altering an important form of procedure in our Courts, is a Bill which requires to have the support, of His Majesty's Government. The first is that there has been a provision in our law which is of the very essence of the administration of justice and of vital necessity to secure that truth shall prevail. It is that in two cases at least corroboration is necessary of evidence given by the complainant. And when I mention them to you your Lordships will, I know, agree. The first is in actions for breach of promise of marriage. No one can tell what abuses are possible and what abuses have been avoided by the fact that that condition of corroboration is laid down as part of the law of evidence. It will now apparently be perfectly possible for the lady who wishes to make a claim on a gentleman (against whom she has other claims) who has promised to marry her, to write a letter to her friends and say: "I am glad to be able to tell you that this day Tommy" (or whoever he is) "has promised to marry me." Now if that were really capable of being used as corroboration and as meeting the demands of the Statute, to my mind it would destroy the whole effect of the Statute which requires corroboration.

809
The second kind of case in which corroboration is necessary is the bastardy case. Everybody knows, unfortunately—I do not like to speak of the practice, but how often it has happened that a girl has made a claim against a man improperly that he is the father of her child. It is quite a common claim to make, for instance, against the employer when he is not really responsible at all. If it really could be said that a letter written by a girl at any time to any of her companions the effect that "so-and-so was the father of my child" was to be evidence and corroboration of that story, I think the whole value of the provision about corroboration would be defeated. That is one point that I thank ought to be dealt with.
The other question is in relation to commercial law. My noble and learned friend did not tell your Lordships, but it is apparent in the Bill, that this alteration in the law of evidence does not apply to the trial of criminal cases. That, of course, at once introduces a little anomaly into the law, because you will have a different law of evidence in the one class of case from that in the other. I think that is fully justified; it is a very wise provision to make. But then it has to be remembered that day by day, at any rate week by week, charges involving criminal offences are tried in the civil court—cases arising out of policies of insurance, fidelity guarantees, wrongful dismissal, libel and slander. Cases constantly have to be tried in the Courts of whether a man has been guilty of arson, whether he has been guilty of forgery, falsification of books, thefts and crimes of that kind, and we have always been the habit of telling juries, and instructing ourselves, that the case ought to be as fully proved by just as satisfactory evidence where the charge is brought in a civil court as when it is brought in a criminal court. I think some provision of that kind ought to be made, and I hope very much that my noble and learned friend will be in a position to exempt the application of his law from cases where a criminal charge is involved in a civil case. I rose really to say with great respect that the Bill requires a few more safeguards, and I did not rise to oppose it at all. I think within its proper and reasonable application it may be of great use.
THE LORD CHANCELLOR (VISCOUNT HAILSHAM): My Lords, my noble and
810
learned friend Lord Atkin said that this was a Bill which required the support of an examination by the Government. The Bill has had that examination, and I am authorised on behalf of the Government to express the Government's thanks to my noble and learned friend Lord Maugham for introducing the Bill and to express the view that it will be a useful alteration of the law. I do not deal now with the points raised by my noble and learned friend Lord Atkin, because I will leave them as Committee points to be dealt with by my noble and learned friend Lord Maugham. I was, however, rather surprised to hear the noble Lord suggest that the law of corroboration would be affected. I did not think that it would.
LORD ATKIN: I am glad to hear it. I hope it will not.
THE LORD CHANCELLOR: I do not think that the manufacture by a lady of a letter by her to a friend stating what she stated in the witness box will afford corroboration of her statement.
LORD ATKIN: I am very glad to hear it.
THE LORD CHANCELLOR: I do not understand that that is the proposal of my noble and learned friend Lord Maugham. However, these are Committee points. I only rise to express the approval of the Government, and to say that if the Bill is passed by your Lordships' House and goes down to another place, although the Government cannot hope to pass any measure through another place if there is substantial opposition, because their programme is already congested, I hope that in this House we shall make the Bill so perfect that it will not excite opposition in another place. In that I hope we shall have the assistance of my noble and learned friend Lord Atkin, and of others of your Lordships who are learned in the law, and indeed of other noble Lords who are practised in the administration of the law, because experience of ruling on evidence and of considering the questions to which my noble and learned friend Lord Atkin referred is by no means confined to lawyers. I hope that those who regard the Bill as a valuable reform and do not think that it goes far enough will not make the mistake of treating half a loaf as negligible because it is not a whole

811
loaf, and will not cast away the substance of what I think is a useful reform for the shadow of an ambitious measure. I hope noble Lords on both sides of the House will combine in Committee to make the Bill practicable. I know the Bill was considered by the Council of judges and I know that it was approved by the Peel Commission on the despatch of business in the Common Law. I hope that the Bill, if it is enacted, will reduce the costs of litigation, which are rising and which ought to be diminished.
LORD MAUGHAM: My Lords, with regard to what has fallen from my noble and learned friend Lord Atkin may I say that I am fully conscious that this Bill in its present form is not perfect. I hope that with his assistance I shall be able to introduce some amendments at the Committee stage which will satisfy him. That, at any rate, is my intention. The noble Lord has already spoken to me about these points, but I did not mention them in introducing the Bill because of a certain reluctance to steal his thunder. But may I add a point which I should have mentioned before? The Bill has been incubated for a period of seven years, which perhaps your Lordships will think almost long enough for a legal Bill. A committee of judges consisting of Lord Justice Greer, Mr. Justice Avory, Mr. Justice Roche and Mr. justice Langton considered the Bill, and I am proud to think that Sir Horace Avory had a great share in drafting this Bill and strongly approved it. Another Judge whose name I might mention is the late Lord Tomlin, who also thoroughly approved the principle of the Bill. Although, as I agree, the Bill is not perfect, and amendments are possible, I hope I have said enough to show your Lordships that it is not a hasty sort of measure produced without consideration. As a matter of fact it has been before the Bar Council and several of the law societies in the country, and nearly always, subject to minor suggestions, it has met with complete approval. I was very glad to hear what the noble and learned Viscount on the Woolsack said with regard to the Bill. I hope that it may be so amended in Committee that it may pass into law.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

RANELAGH CLUB GROUNDS.
LORD STRABOLGI LORD STRABOLGI rose to move to resolve, That in the opinion of this House, His Majesty's Government should take immediate steps to secure the Ranelagh Club grounds as an open space. The noble Lord said: My Lords, I beg to move the Resolution which stands in my name. This Resolution raises two quite important matters. I want to say at the beginning that I am not a member of Ranelagh Club, that I have never been a member, that I have been there only once in my life, and that I only speak in this matter as a citizen of London. The first question that arises is whether this open space of 117 acres of parkland so close to the centre of London is to be built over with luxury flats, cinemas and shops, as is proposed, or whether it is to be preserved as an open space as it has been for the last thousand years. From Saxon times, Ranelagh has been first a deer park and ever since an open space. It is only five minutes ride by omnibus from Hammersmith Broadway. There is no space like it so close to London of such an area and in such a perfect position for the recreation and health of the people.
The second point of importance concerns the purity of local government. I am not going to mince matters. There are certain scandals connected with the business which should be exposed, which I propose to expose and upon which I hope the Government will take action. The short history of the matter is as follows: There was a domestic dispute within the club and a distinguished gentleman who had been chairman for many years was displaced. Thereupon two new members, the Behars, father and son—I will call attention to their antecedents in a moment—went to him and said that it was very bad luck and that if he would join them in buying up enough shares to get control of the company they would replace him as chairman. They told him that they had the interests of the club at heart and that they wished to preserve it as an open space and so on. The ex-chairman, an old man, "fell" for this, if I may be allowed to use an Americanism. He was taken in by this sort of talk and he covenanted to buy the shares. Then the Behar family proceeded behind his back to buy additional shares and presently

813
he found that they had got control of the company owning the club and trouble began.
These Behars have a romantic history. They are of Armenian origin and they began business as carpet merchants in Scotland. Having accumulated money they became interested in real property, and are now estate developers. At the beginning of this business they always pretended that they wished to preserve the club and its amenities and maintain this open space. For an expenditure of, I understand, £30,000 to £40,000 they succeeded in buying up enough shares of the company owning the club to give them control. And, my Lords, what a prize they got! I have seen figures of valuation by very prominent independent valuers, showing that if those 117 acres of land so close to London could be freed of all building restrictions of the town-planning scheme and everything else, and just be thrown into the market for any kind of building development, they would have a value of over£2,500,000. That is their open market value, free of all restrictions and covenants: £2,500,000, for an expenditure of £30,000 or £40,000 in buying these shares and then, by a most extraordinary piece of chicanery, getting hold of the freehold from the Ecclesiastical Commissioners for a sum of about £78,000. For an expenditure altogether of about £100,000 they got this site, which is worth in the open market £2,500,000. Of course they can afford to do all kinds of things with stakes of that kind before them.
Having done that, they then proceeded to get into touch with certain members of the Barnes Council—the Borough of Barnes I have here with me letters from four of the councillors of Barnes which I am going to take leave to send to the noble Viscount, Lord Gage, who represents the Ministry of Health in this House with such ability and brilliance, and I am going to invite his attention to these letters from these public representatives making the gravest accusations against the clique on the Barnes Corporation who formed this arrangement with the new owners of the majority of shares in the club. What they had to do with the Barnes Council was to have this open park-land, which was scheduled, or going to be scheduled, as an open space, taken out of the town-planning scheme. That would of course have stopped all
814
building development, and their object was by hook or by crook to get it taken out—decontrolled—so that they would be free to benefit by speculative building. The first inkling of what was afoot only came out and became known to the majority of the Council on June 12, 1935. The majority of the councillors of Barnes—the City Fathers of Barnes—knew nothing whatever about this business until they received a memorandum, marked "Secret and Confidential," in which the scheme was disclosed: to build 3,000 luxury flats—I understand of eight storeys—shops, cinemas, garages, filling stations for petrol, and all the rest of it, to accommodate a population of some 15,000 people.
I do not know what the Ministry of Transport will have to say about this; but your Lordships are aware that the western exits of London are very congested at present, and if the promoters are going to put down there, on this last remaining open space, a new town of 15,000 people, it is going to increase very much the difficulties of getting in and out of London. I would remind your Lordships that this part of London is not well blessed with open places. Barnes Common in the week-end, during the fine weather, is very crowded indeed; Richmond Park is crowded on Saturdays and Sundays even in winter; it is seriously congested with people. Every inch of space which can be used for playing games in Richmond Park is used by young men for football in winter and for cricket in summer, and there is too little room altogether.
How did this extraordinary arrangement with the Barnes Council come about? This is the fact to which I would particularly wish to draw the attention of the noble Viscount, Lord Gage. The business of taking this space out of the town-planning scheme and decontrolling it was rushed through in the holiday season at an emergency meeting on July 31, 1935. Only ten out of the thirty-two elected councillors of Barnes—councilors and aldermen—voted for this scheme being taken out of the town plan. One of the aldermen protested at the way they were being rushed. He asked for postponement on the ground that they had very little time—half-an-hour, actually—to consider a long and complex legal document. His motion to postpone discussion was lost by ten votes to eleven.

815
At the next meeting, held on August 16, 1935, it was disclosed that an important letter from the chairman and another member of the board of the club, protesting against what was afoot and written on their behalf by their solictiors, had never been laid before the Council, its sub-committee dealing with this matter, or the town-planning committee. What happened was that the chairman of the club and another member of the board—the chairman of the board of directors of the company that owns the club, and another director—became alarmed, and warned the Barnes Corporation in an official letter written by their solicitors to the Town Clerk that the negotiators who had been in treaty with the Barnes Corporation were not authorised to come to any conclusion without the final approval of the board. This letter reached the Town Clerk of Barnes, was shown to the chairman of the town-planning committee, and was suppressed. It was not put before the members of the Council; it was kept from them.
The gentleman who seems to have played the principal part in this extraordinary business is an ex-mayor of Barnes who has been many years on the Council: an alderman, Mr. Jackson by name, who is himself a partner in a firm of estate developers and whose two sons are engaged in the building business on a large scale in the district. I am afraid there is here a fairly clear case of improper influence, to speak perfectly plainly. As I said at the beginning of my remarks, my Lords, there is not only the question of this great open space, but also of the purity of public administration in this country. No satisfactory explanation has ever been given for the suppression of that letter. I have four letters from councillors; I did not know these people; it is only since it was known that this Motion was coming on in your Lordships' House that they have written to me. They are strangers to me, but I am going to send their letters to the noble Viscount who speaks for the Ministry of Health. They make it clear in writing that if they had known of this letter they never would have consented to the proposal going through.
As to the Ecclesiastical Commissioners, the grounds were leased from the Commission on a 999 years' lease. It was necessary, of course, if this plot were to
816
go through, that the freehold should be obtained. It was obtained for a very modest sum, in view of the value of this wonderful piece of land. I have here a letter from the Commissioners which I shall be very glad to send to the noble Viscount. They said quite plainly that it was represented to them that the one idea was to preserve this land as an open space; there was no intention of building, only of preserving its amenities and its beauties. They were misled in the same way.
I think your Lordships will agree that if these facts are true—and I think they can be proved; I have satisfied myself of their accuracy—this is a very grave scandal indeed. Ah, yes, but think of the value of the prize when built over with luxury flats: £2,500,000 for the expenditure of about £100,000—what the Americans would call "a killing" ! I think the Government must really step in in this case. I hope that in the first place they will inquire very fully into what I have been saying and the facts I have disclosed. At the end of August, 1935, one of these councillors, who had become thoroughly suspicious by that time—one of the honest men on the Barnes Council—wrote to the Ministry of Health inviting an inquiry and asking for one. He got back the ordinary formal letter that an inquiry could only be instituted at the request of the Council of Barnes itself. I think that covers the ground, except for one point. This land is not really suitable for building; at any rate on the river side, because it is liable to flooding. I have photographs showing very extensive floods at the beginning of this month. But these gentry, these building speculators, have also entered into an agreement with the Barnes Corporation, which is tucked away in a long document, in which, if there is flooding after building, the Barnes Corporation will have to use the ratepayers' money to erect anti-flood works. That makes the business all the more sinister.
I do not know whether I am right in saying that the London County Council in this matter are practically powerless. The club members themselves are certainly in a difficult position. There is litigation going on, with which I am not concerned. There are actions and cross-actions, but I know nothing about the legal business afoot and I think the only

817
people who can act here are the Government. It will be said, I am told, that the speculator's are only going to build over one little strip of land now, but it will ruin the club as a club, and then, of course, it will be possible to say that they cannot carry on financially and the rest of the land must be built over. This scheme as disclosed in fact shows that all but thirty acres will be built over with skyscraper flats, shops and cinemas. Once this is done this wonderful open space will be gone. I am not thinking of it so much as a club, but as an open space for the people of this country, where they can enjoy recreation and make themselves fit as citizens of this country. On these grounds I appeal to the House, and to the Government, to support my Motion. I beg to move.
Moved to resolve, That in the opinion of this House, His Majesty's Government should take immediate steps to secure the Ranelagh Club grounds as an open space. —(Lord Strabolgi.)
VISCOUNT GAGE: My Lords, I think everyone feels sympathy with the noble Lord in his desire to preserve Ranelagh. Everyone would regret its passing; and I quite agree that it is to be deprecated if the unnecessary population of London is to be increased. Although I very much appreciate the unsolicited testimonial which he handed to me, we have to deal with the matter not only as a question of sympathy but as a question of law and as a question of finance. As I understand it the position is this, that following the information that this land was coming on the market the Barnes Council entered into an agreement, under Section 34 of the Town Planning Act, with the owners. I would like to point out that any town-planning authority can enter into an agreement under this section. I am aware that various points have been raised about the validity of this agreement in particular, and, as the noble Lord rather hinted, there is an action pending about the validity of this particular agreement. I think, therefore, it would be improper for me to express an opinion on that matter, but it is true that any town-planning authority has power to make such an agreement, and the Minister has no power to prevent such agreements being concluded.
As to the terms of this agreement, if the Barnes Corporation wished to purchase or
818
preserve this piece of land as an open space they could have done so, but as the land was worth, I am informed, somewhere in the neighbourhood of £800 per acre, they would have incurred a liability of somewhere in the neighbourhood of £750,000 in compensation, and that was clearly beyond the means of the Barnes Corporation to do. It is true that it is within the power of the London County Council and of the Surrey County Council to make contributions, but they have not done so, and no doubt they take the view that having regard to the proximity of Barnes Common, Richmond Park, Putney Heath, and Wimbledon Common it is very difficult to justify the acquisition of more open spaces for the public at such a figure. The noble Lord spoke of open spaces. I presume that the noble Lord meant public open spaces and not private open spaces.
LORD STRABOLGI: I did not propose the spending of public money to keep this open as a private club, but I understand there will be great difficulty, after what has happened in keeping the club going as a private concern, and I therefore want this land to be open to the public.
VISCOUNT GAGE: I so understood the noble Lord. But I must point out that although the County Councils have this power of contributing, which for the reasons which I have surmised they have not done, the Minister has no fund out of which to make contributions for the preservation of open spaces, even if it is considered desirable. In these circumstances the Barnes Corporation have had to make the best of the situation, and certainly in this agreement they have obtained certain conditions of some value. They have, I understand, obtained agreed conditions as to the height of buildings. The noble Lord talked about skyscraper flats. I think that is an exaggeration, for I understand that the height of buildings is to be strictly controlled. There are also conditions for the preservation of trees, and they have secured hundred feet strips by the river for acquisition or lease by the Council, and conditions as to the preservation of the club house and thirty surrounding acres, with an option to the Council to purchase if it comes on the market.
That is the bare story, so far as the official information goes. Unofficially

819
we know that there has been a good deal of dispute on various points. Indeed, one of the difficulties of discussing the matter from a departmental point of view is the immense amount of litigation either pending or threatened. We understand that a dispute has arisen as to whether the directors have the power to offer the land for sale, and that is sub judice, and therefore I cannot talk with quite the same freedom as the noble Lord did. I have already referred to the action as to the validity of the agreement, and now on top of that there is a suggestion made by the noble Lord, which I had heard in a less definite form, that there have been very grave irregularities about the circumstances in which this agreement was made, quite apart from the point of whether it was ultra vires.
I appreciate that the noble Lord did write to me to indicate roughly what he was going to say, but I did not know the exact charges that he was going to bring. But so far as I have been able to ascertain the Ministry have no power to make the inquiries that he suggests, even if there was evidence of these irregularities, which so far we have not received. I can refer him to the Local Government Act, 1933, Section 76 of which deals with the question of members of the Council being personally interested in a contract. I do not know whether that quite applies to the case that he has made, but if it does subsection (7) of that section says:
"A prosecution for an offence under this section shall not be instituted except by or on behalf of the Director of Public Prosecutions."
That definitely puts the obligation to take action on the Director of Public Prosecution, and of course there is the remedy of the Courts. I am sorry that I cannot give more assistance to the noble Lord. My right honourable friend is naturally very interested in any matter affecting the planning of London, and has indeed offered to preside at an informal conference between the owners and members of the club if both parties would like him to do so. But it is obviously not a matter which he could take up in his official capacity. I hope my noble friend will understand that the Department are doing what they can in the interests of amenity, but they are under very obvious statutory limitations, which it is all the more important to respect in view of the very contentious atmosphere with which
820
the whole of the affair is surrounded. Therefore we cannot, I am afraid, accept the Motion which he has put forward.
LORD ADDISON: May I ask the noble Viscount two questions which he does not appear to have referred to? Has a town-planning scheme with regard to this area been submitted to the Ministry, and, if so, has the Minister held an inquiry into it before sanctioning it, if he has sanctioned it?
VISCOUNT GAGE: I understand that there has been a draft scheme submitted, which was approved and in which this piece of land was reserved as a private open space. But that was in the days when there was no suggestion of any sale being effected. The case was quite clearly altered when the club or the directors showed intention of selling this land, because the whole question of compensation arose, and I understand that, although I do not think the town-planning scheme has reached the inquiry stage, nevertheless this agreement, which of course can be scheduled to the scheme, has, I understand, taken the place of the restrictions that were then imposed in that draft scheme.
LORD ADDISON: I understand that a provisional scheme was submitted to the Minister, in which this part was scheduled as a private open space, and that as such it was provisionally sanctioned. If so, may I ask if the Minister is prepared before sanctioning any alteration of that scheme to hold an inquiry?
VISCOUNT GAGE: I think the noble Lord is trying to get me to make a general observation on the position of agreements; I know sufficient about that to know that it is a matter of some complexity, and if he wishes me to enter into that I should prefer that he gave notice. He asks if the Minister is prepared to hold an inquiry into this particular part of the scheme.
LORD ADDISON: I am sorry to keep interrupting. I mean the amended scheme.
VISCOUNT GAGE: I do not think any finality is given by the fact of the draft scheme being considered by the Minister. These schemes go through various stages, and finality is given to a scheme when the official inquiry takes place. I do not think

821
that the fact that re-zoning of a particular piece of land after a certain stage has taken place has really very great significance, unless that is done after the official inquiry has taken place. I do not really think that the Minister would be empowered to have a special inquiry into the circumstances in which this agreement was made after the draft scheme had been submitted to him but before the official inquiry took place.
THE EARL OF CRAWFORD: My Lords, I am very glad to hear from the noble Viscount that the Minister of Health is prepared, if the parties agree, to preside over an informal conference of those persons who are interested. The Minister of Health is an extremely well-informed and extremely adroit negotiator, and I do not think anybody could produce better results than are likely to be obtained from Sir Kingsley Wood. I should like to say that it is not only my opinion that Sir Kingsley Wood is concerned but the Minister of Health, and I think the Minister of Health in this matter has probably got greater powers than Sir Kingsley Wood, and I very much hope that the matter will not end as the noble Viscount, Lord Gage, has left it. He knows very well, being so much concerned with town planning in his great county, in which he has performed such valuable services to the public, how complex is the law of town planning, and the story unfolded by Lord Strabolgi, I think, sufficiently gives concrete proof of that fact. But really I do not feel that the matter can stay as it has been left this afternoon. I think the noble Viscount, Lord Gage, rather indicated that he was prepared to go into it a little further, and, if so, I think it would be within the bounds of Parliamentary propriety if the noble Lord, Lord Strabolgi, asked leave to withdraw this Motion now and put it down for some subsequent date when the complete answer can be given. At the present stage the answer is not only incomplete but rather unhappily so. The allegation made by Lord Strabolgi, who knows no more about Ranelagh Park than I do, except the information that he gets from interested parties, is that the decision was reached without the full facts being disclosed. I did not quite hear him, but I thought he said that the Ecclesiastical Commissioners equally had parted with their share in the estate without knowing the full facts of the case.
LORD STRABOLGI: Under misrepresentations.
THE EARL OF CRAWFORD: Well, that is a very grave allegation to make. I thought Lord Strabolgi said he had it in writing.
LORD STRABOLGI: Yes, I have.
THE EARL OF CRAWFORD: In those circumstances would it not be better that we should go into the matter at some later stage? I do not like the view expressed by the noble Viscount, Lord Gage, that it is hard to justify the maintenance of this place as an open space because Richmond Park is close by. It is impossible to have too many open spaces within twenty-five miles of Charing Cross. The growing needs for healthy physique, for recreation, for repose in London are tremendous and increasing in intensity every day, and I am sure it is wrong for the Ministry of Health to look upon this open space as superfluous just because Richmond Park is close by. The noble Lord, Lord Strabolgi, was quite right in saying that Richmond Park is already congested. It is crowded with motor cars, with people playing games and lying about on the grass, horses galloping all over the place, and so on. Every acre that can be preserved within twenty-five miles of Charing Cross ought to be preserved for the good of the public, and I hope that view will be shared in a more sympathetic manner by the Ministry of Health.
LORD MANCROFT: I hope I may be allowed to support what my noble friend has just said. I have recollection of circumstances in which we were able, when I was in the House of Commons, to prevent flats being put up at Regent's Park. It is true there was in that case no question of unworthy conduct. But we have heard in your Lordships' House two allegations of unworthy conduct, of contracts made where good faith was not kept. I do not think public opinion will allow this matter to go further forward unless His Majesty's Government tries to find some means of reopening the whole question by means of an inquiry to settle the matter.
VISCOUNT GAGE: May I be allowed to point out that neither the noble Lord nor the noble Earl dealt in any way with the real difficulty in which the Ministry is this afternoon—namely, that there are at least two, if not several more, legal

823
actions being fought on these points, particularly on the point of the validity of the agreement under which this whole question arises.
LORD MANCROFT: I cannot, of course, refer to matters which are sub judice, but I am sure public opinion will not be content unless these allegations are put to rest. My noble friend should find some means through his Department or some other Department, or even through the Public Prosecutor, to bring home unworthy dealings such as have been suggested. Some means ought to be found whereby a judicial decision can bring the matter to finality, because public opinion will require this matter to be straightened out.
LORD STRABOLGI: My Lords, I am very much obliged to the noble Lords who have spoken on this grave matter and to the noble Viscount for his reply. He said he had not heard of these charges. Neither had I. It was only when I put this Motion down that they rained in
824
upon me from disinterested people. They are elected representatives of the people, public men, and they have asked for this matter to be looked into. I recognise the difficulty about the legal actions, but I hope when they are settled that this matter may be gone into further. With regard to the offer of the Minister of Health to arbitrate unofficially, which is typical of his great interest in these public matters, I am advised that that offer has never reached the members of the club who are trying to prevent this exploitation of their property. They know nothing about that; but I will take steps to see it is brought to their notice. I hope, when I send these papers to my noble friend which I had not got when I put down my Motion, that the Ministry will look into this matter again, and I gather they will do so. I intend to return to this business later. In the meantime I beg leave to withdraw my Motion.
Motion, by leave, withdrawn.
House adjourned at six minutes before six o'clock.