Lords Sitting of 5 May 1949

Preamble
The House met at three of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers

  AGRICULTURE (MISCELLANEOUS PROVISIONS) BILL
  3.5 p.m.
  Order of the Day for the House to be put into Committee read.
  Moved, That the House do now resolve itself into Committee.—(The Earl of Huntingdon.)
  On Question, Motion agreed to.
  House in Committee accordingly.
  [The EARL OF DROGHEDA in the Chair]
  Clause 1:
  Schemes for subsidy payments in respect of calves.
  1.—(1) The appropriate Minister may, in accordance with a scheme made by him with the approval of the Treasury, make, out of moneys provided by Parliament, payments in respect of calves of such descriptions as may be specified in the scheme, being calves born during the period beginning with the twenty-first day of August, nineteen hundred and forty-seven and ending with the first day of October, nineteen hundred and forty-nine, and reared to such age as may be so specified.
  LORD CARRINGTON: On behalf of my noble friend Lord Bledisloe, who is unable to be here, I rise to move the first of a series of Amendments standing in his name. They all have a similar purpose. My noble friend thinks it would be misleading to describe as "calves" the animals referred to in Clause 1, owing to their age, and he wishes to substitute the words on the Marshalled List. I beg to move.
  Amendment moved—
  Page 1, line 8, leave out ("calves") and insert ("bovine animals").—(Lord Carrington.)
  THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF AGRICULTURE AND FISHERIES (THE EARL OF HUNTINGDON): I think this Amendment arises out of a misunderstanding on the part of the noble Viscount, Lord Bledisloe. The subsidy scheme deals entirely with calves. If I remember aright, in his speech on the
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  Second Reading, the noble Viscount suggested that the subsidy might be paid on animals born eighteen months ago. In practice, the subsidy has been paid, and is payable, on calves not more than twelve months old. In view of that I would suggest that it might be better to keep the expression "calves" than to substitute for it "bovine animals."
  LORD CARRINGTON: I am much obliged to the noble Earl, and beg leave to withdraw the Amendment.
  Clause 1 agreed to.
  Clauses 2 to 4 agreed to.
  Clause 5 [Power of Ministers to make schemes for subsidising grass and forage crop conservation]:
  LORD CARRINGTON: On behalf of my noble friend Lord Bledisloe, I beg leave to move this Amendment, the purpose of which is to clarify the situation and to make sure that grants and loans—as opposed to grants or loans—can be given to farmers to help to preserve their varied crops. The Bill at present reads:
  "… financial assistance … by way of grant or loan …"
  and so on. The purpose of this Amendment is to ensure that there is a blend of both grant and loan. I beg to move.
  Amendment moved—
  Page 4, line 36, after ("loan") insert ("or both").—(Lord Carrington.)
  THE EARL OF HUNTINGDON: Perhaps I may be allowed to clarify the position. The important words in this clause are: "financial assistance," which may be given by grant or loan, or partly by grant and partly by loan. Financial assistance could be given under any of those terms or degrees of those terms. I hope that in view of this the noble Lord will think fit to withdraw the Amendment.
  LORD CARRINGTON: I beg leave to withdraw the Amendment.
  Amendment, by leave, withdrawn.
  Clause 5 agreed to.
  Clause 6 [Powers of Milk Marketing Boards to conserve grass and forage crops and provide artificial insemination services]:
  EARL DE LA WARR: On behalf of my noble friend Lord Bledisloe, I beg to move this Amendment, which is really

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  of a drafting nature. One cannot help thinking that the clause might be made a little clearer, and that might be done by inserting the word "Marketing." I thought that at any rate the point was worthy of submission to the Government. I beg to move.
  Amendment moved—
  Page 5, line 27, leave out ("board") and insert ("Marketing Board").—(Earl De La Warr.)
  THE EARL OF HUNTINGDON: We appreciate the intention of the noble Viscount and of the noble Earl in moving this Amendment. In practice, under the original Marketing Acts, any board administering a scheme would have to be a Marketing Board; and if we were to accept the Amendment it would mean further alterations throughout the Bill. In the light of those considerations, perhaps the noble Earl may think fit to withdraw his Amendment.
  Amendment, by leave, withdrawn.
  Clause 6 agreed to.
  Clause 7 [Miscellaneous amendments of enactments relating to milk and dairies]:
  EARL DE LA WARR: This again is rather in the nature of a drafting Amendment. But no doubt the noble Earl has the best legal advice, and I shall be quite prepared to accept whatever he says after consideration. I beg to move.
  Amendment moved—
  Page 6, line 10, leave out ("infected") and insert ("infectious").—(Earl De La Warr.)
  THE EARL OF HUNTINGDON: We have given careful consideration to this Amendment. The position, however, is that under the Food and Drugs Act of 1938 the word "infected" has been used, and we think it would be better to keep the same wording in this Bill, so as to avoid any difficulty in future administration. That being so, perhaps the noble Earl may care to withdraw his Amendment.
  EARL DE LA WARR: In view of what the noble Earl says, I beg leave to withdraw my Amendment.
  Amendment, by leave, withdrawn.
  Clause 7 agreed to.
  Clause 8 [Provisions as to training for agricultural occupations]:
  LORD CARRINGTON LORD CARRINGTON moved, in subsection (1) after "occupations" to insert "or occupations ancillary thereto." The noble Lord said: The purpose of this Amendment is to widen the scope of this clause, which makes provision for the training of young people, to include trades ancillary to agriculture, such as that of the farrier, the thatcher and the repairer of agricultural implements All those trades are essential to the proper working of the farm. Many of them are sadly in need of encouragement. This would seem to be a good way of giving that encouragement. I hope that the noble Earl will see his way to accept this Amendment. I beg to move.
  Amendment moved—
  Page 6, line 36, after ("occupations") insert ("or occupations ancillary thereto").—(Lord Carrington.)
  THE EARL OF HUNTINGDON: We have complete sympathy with the intention of this Amendment, particularly after the eloquent way in which it has been moved by the noble Lord. I am afraid however that I must resist the Amendment because this training is already being provided by the Ministry of Labour under the Employment and Training Act, 1948. When we first considered the question of training, it was thought that such ancillary occupations as those of farriers or machine fitters and so on, could much more easily be taught in special classes, and would therefore come better under the Ministry of Labour scheme rather than under the Ministry of Agriculture, under various private employers. However, there is one exception—namely, the trade of thatching, for which training is given by employers under the Ministry of Agriculture's general scheme. Therefore, in view of the fact that those other vocational training branches are fully dealt with under the Ministry of Labour scheme, I hope the noble Lord will agree to withdraw this Amendment.
  EARL DE LA WARR: In view of the noble Earl's remarks, I think that this Amendment is perhaps rather a point of substance. Quite apart from whether this training is under the Ministry of Labour or not, if he could give us an undertaking that the point will be dealt

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  with and will not fall between two stools, then perhaps my noble friend would not press his Amendment.
  LORD CARRINGTON: The noble Earl mentioned the question of thatchers. Are they included in this clause as agricultural workers, or do they come under neither the Ministry of Labour nor this clause?
  THE EARL OF HUNTINGDON: In practice, they come under the Ministry of Agriculture. There is a further difficulty in this Amendment. I did not raise this in the first place as it did not seem necessary to do so, but, if we accepted it, it might raise a question of Privilege. In theory it would extend the money grant to these ancillary occupations as well as to the original agricultural and horticultural occupations as specified in the Money Resolution. Quite apart from that, I will willingly undertake to give the assurance asked for, that we will give great attention to the necessary training in regard to the ordinary blacksmith, farrier and so forth. I should like to assure the noble Lord too that thatching will receive adequate attention.
  LORD CARRINGTON: In thanking the noble Earl for his reply, I beg leave to withdraw the Amendment.
  Amendment, by leave, withdrawn.
  EARL DE LA WARR: This is a purely drafting Amendment. I beg to move.
  Amendment moved—
  Page 6, line 39, after ("employment") insert ("therein").—(Earl de la Warr.)
  THE EARL OF HUNTINGDON: We shall be pleased to accept this Amendment, which does clarify the position.
  On Question, Amendment agreed to.
  Clause 8, as amended, agreed to.
  Clauses 9 and 10 agreed to.
  Clause 11 [Amendments as to penalties under Destructive Insects and Pests Act, 1877]:
  THE EARL OF HUNTINGDON: This is purely a drafting Amendment. I beg to move.
  Amendment moved—
  Page 9, line 16, leave out ("and Pests").—(The Earl of Huntingdon.)
  On Question, Amendment agreed to.
  Clause 11, as amended, agreed to.
  Remaining Clauses agreed to.
  Schedule agreed to.
  House resumed.

  LANDS TRIBUNAL BILL
  3.19 p.m.
  An Amendment reported (according to Order).
  Clause 1:
  Establishment and jurisdiction of Lands Tribunal
  (3) There shall be referred to and determined by the Lands Tribunal—
  (a) any question which is by any Act (including a local or private Act) directed, in whatever terms, to be determined by a person or one or more persons selected from either of the following panels, that is to say,—

  (i) the panel of official arbitrators appointed under the Acquisition of Land Act; and

  (ii) the panel of referees appointed under Part I of the Finance (1909–10) Act, 1910;

  or which is so directed to be determined in the absence of agreement to the contrary;
  THE LORD CHANCELLOR THE LORD CHANCELLOR moved to add to subsection (3):
  "(e) any question on which, but for this, provision, an appeal or reference to the county court would or might be made by virtue of section forty-nine, sixty-two or eighty-seven of the Local Government Act, 1948."
  The noble and learned Viscount said: My Lords, in rising to move this Amendment, I venture to hope that it will receive the approval of all your Lordships. The original suggestion owes its origin to the fact that a member of the Opposition in another place suggested that, if we were going to set up this Lands Tribunal, it would be most desirable that they should deal with questions of rating. So far as I know, having consulted the Surveyors' Institute and a large number of people, everybody seems to think that that is a good idea, and accordingly the effect of the Amendment which I now move is that questions of rating dispute will be heard before this Tribunal. This is an important alteration, and your Lordships will remember that, as the law now stands, and dating, I think, as from February next, it was provided that these cases were to be heard by the county courts. I have always thought that one of the weaknesses in our rating system (and I have played some small part in that system) is

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  that you can never compare one area with another merely by finding out what was the rate charged unless you also knew what was the basis of the assessment. It was notorious that there were some areas of the country where the assessments were low and others where the assessments were much higher. That was due, I think, to the fact that a number of courts had too small an area to decide the matter and establish it on a level keel throughout the whole country.
  The Local Government Act of 1948 changed the making of the valuation for rating in this way. The first court of appeal was changed from the assessment committee to the local valuation panel, schemes for which are now being made, and the second court from quarter sessions to county court, primarily because of the advantage in having these appeals heard by courts operating over fairly wide areas and thus securing uniformity of decision. During the passage of the Bill it was argued that appeals of this kind should be heard by special tribunals but as there was no suitable system in existence which could take on this work, there was no possibility of meeting the point. The new Lands Tribunal will, I hope, prove to be precisely the sort of body which meets the need. It will be composed in part of surveyors appointed, as I have always appointed them, in consultation with the President of the Surveyors' Institute—and I would like to take this opportunity of thanking successive Presidents of that Institute for the assistance they have always given me in finding the right people—and partly of lawyers experienced in this work. I believe the result of that system will be of great advantage. We shall have these appeals heard by people who are experienced in this class of case.
  In regard to questions of amount, it will probably not be necessary to have a lawyer at all and the rating surveyors can probably deal with it; but, as often happens, where you have cases of mixed fact and law, the lawyers and surveyors can deal with the matter together. Having consulted a large number of organisations and people, I have heard no one dissent from the suggestion which was originally made by a member of the Opposition. Therefore, I do not think it is in any sense a Party controversial point, and I suggest to your Lordships
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  that in setting up this Tribunal we should be well advised to entrust it with the obligation to hear these rating appeals, thereby relieving the county courts. There is another reason why I am glad to relieve county courts. The tendency of to-day is to entrust more and more work to the county courts. I believe they have established themselves to the satisfaction of the vast majority of the people of this country, and a considerable number of judges are doing very important work, and doing it in return for very small remuneration. The pressure of business upon them has increased, and therefore I am rather reluctant to cast this further burden upon them. If I can relieve the county courts of this burden by entrusting it to a Tribunal which is in some respects better qualified than a county court, I am very pleased to do so. Accordingly, I beg to move this Amendment.
  Amendment moved—
  Page 2, line 23, at end insert the said paragraph.—(The Lord Chancellor.)
  LORD TEVIOT: My Lords, while supporting the Amendment so ably moved by the noble Viscount on the Woolsack, may I ask this question to clarify some points which have been put to me—namely, will the Lands Tribunal have depôts in various parts of the country which will enable the witnesses and those who will require to give evidence on matters arising out of appeals to attend there, or will those persons have to come to some central place?
  THE LORD CHANCELLOR: This will be a very peripatetic court. It will travel about so as to meet the convenience of the various people concerned.
  LORD TEVIOT: I thank the noble and learned Viscount for his reply.
  VISCOUNT SIMON: My Lords, I venture to intervene just to say that I think that the proposal which the Lord Chancellor now makes is one which we will generally accept. The new Tribunal is certainly very well qualified to decide rating matters, constituted, as it will be, both of lawyers and of persons experienced in the valuation of land. I am glad that my noble friend behind me has already ascertained that these rating appeals will be dealt with locally and will not involve people coming unnecessarily

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  to some central place. There are perhaps one or two other matters on which some people might like to be assured. I think the intention is that in the case of a rating appeal to a county court, solicitors can appear, as well as barristers. I think it is quite right that they should. It will be useful to have that assurance, because some people have been anxious to know. I certainly think solicitors or barristers ought equally to be available to present an important case, although, as the Lord Chancellor has said, there will be simple cases in which there will be no need for trained legal assistance.
  There is one other matter I wish to raise in regard to this Bill. As your Lordships may have observed, in Clause 3, subsection (6), provision is naturally made authorising rules for regulating proceedings before this new body, and one of the express provisions made is that these rules should include rules "as to the evidence which may be required or admitted in any such proceedings." I think my noble and learned friend the Lord Chancellor will agree that in transferring rating appeals to this new body, which is very well qualified to deal with them, it is not his intention that the existing practice as regards evidence should be altered. Some rating appeals are of great importance to the parties concerned. For instance, a regulation which said that there was to be only one expert on each side, or something like that, would be quite out of place when possibly a most important rating issue is being considered on which both the finances of the local authority and the commercial procedure of some great enterprise may depend.
  Therefore, I shall be glad to know whether the Lord Chancellor can, conveniently, say what he contemplates in regard to that matter. I ask because, of course, what I have suggested would be possible in the terms of the Bill, if very restrictive provisions of that sort are made. I do not want to see an unnecessary multiplication of experts. I think the Lord Chancellor's experience will be much the same as mine—namely, that in some large rating cases it is important that there should be full expert contribution and, it may be, of different points of view from different expert authorities. With those queries, which I hope it is not inconvenient to put, I would like to say that for my part, and I believe I speak
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  on behalf of most people who have considered the matter, I think this is a very useful transfer of jurisdiction, and I am sure the Lord Chancellor adopts it with more pleasure because it was proposed in another place by a member of the Opposition and at the time it was not accepted by the Government.
  THE LORD CHANCELLOR: My Lords, may I just reply to the points raised by the noble and learned Viscount? I certainly contemplate that solicitors should have a right to appear. I have not considered, as yet, what the precise rules I should formulate should be, but I shall certainly pay great regard to what has been said. The sort of thing I had in mind was rather to dispense with the necessity of proving mere documents which everybody knew existed. I quite agree that there are cases in which one should not limit the number of experts. At the present moment I do not wish to say anything more on the matter, except that the point which the noble and learned Viscount has stressed will certainly be present in my mind.
  On Question, Amendment agreed to.
  LORD CLYDESMUIR LORD CLYDESMUIR moved to add to subsection (3):
  "Provided that no question which at the date of the commencement of this Act falls to be determined by the Scottish Land Court shall be referred to the Lands Tribunal."
  The noble Lord said: My Lords, this Amendment refers to Scotland only. On the occasion of the Second Reading of this Bill, I gave notice that it was my intention to move an Amendment to make quite clear the position of the Scottish Land Court.
  As your Lordships are doubtless aware, in the North of Scotland, in the crofting counties, the Land Court adjudicates over a wide field—for example, it adjudicates over questions of compensation for the requisitioning of land for aerodromes and so on. Moreover, questions arise between land owners and crofters which it is particularly appropriate should continue to be dealt with by this Court. The Court has a high reputation and a wide knowledge of conditions in the crofting counties which, as I am sure your Lordships appreciate, differ from other parts of the country.

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  Indeed, the law dealing with these counties differs in some ways, and so it would be unfortunate if anything in the Bill drew away from the work of the Scottish Land Court. It seems to me that the effect of Clause 1 (3) (c) of the Bill might be to preclude the Land Court from adjudicating on questions now arising between land owners and crofters. I therefore move this Amendment, which is in the form of a proviso to Clause 1, in order that we may receive an authoritative statement from the Government about their intentions in regard to the Scottish Land Court, and to ascertain whether it is clear that the work of that Court will not be interfered with. I beg to move.
  Amendment moved—
  Page 2, line 23, at end insert the said proviso.—(Lord Clydesmuir.)
  LORD MORRISON: My Lords, I hope to be able to give the noble Lord a satisfactory answer although, for what I think he will agree are good and substantial reasons, I am unable to accept his Amendment. The first of these reasons is that the noble Lord's Amendment is out of place. The Scottish Land Court has no jurisdiction in any of the questions specified in Clause 1 (3) as being referable to the Lands Tribunal. There is no power in Clause 1 to assign any of the functions of the Scottish Land Court to the Lands Tribunal. The next point, I wish to make, is that the noble Lord's Amendment might be more appropriate in Clause 4. If the noble Lord will look at Clause 4 (1) he will see that it empowers His Majesty by Order in Council to add to the jurisdiction of the Lands Tribunal, subject to conditions specified, questions referable to a statutory tribunal. The question, therefore, has resolved itself now into what is a statutory tribunal. If the noble Lord would now look at Clause 4 (7) he will see that it is laid down that:
  "… the expression 'statutory tribunal' means any Government department, authority or person entrusted with the judicial determination as arbitrator or otherwise of questions arising under an Act of Parliament, except that the expression does not include—
  (a) Any of the ordinary courts of law or a tribunal consisting of one or more judges of any of those courts …"
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  That brings us to the second question which I postulated—namely, whether there is any real doubt as to whether the Scottish Land Court is an ordinary court of law. That, I think the noble Lord will agree, is the point, and I will try to resolve the noble Lord's doubts. The Scottish Land Court is appointed under Section 3 of the Small Landholders (Scotland) Act, 1911, and is expressly designated in the Statute as the Scottish Land Court. It consists of a legal chairman and practical agriculturists experienced in the fixing of rents and the valuation of equipment and stocks. Section 25 (2) of the 1911 Act provides that no other court—and I emphasise the word "court"—shall review the orders or determinations of the Land Court. The view that it is an ordinary court seems to be confirmed by the opinion of the Lord President in Mathieson v. the Board of Agriculture, 1917. In that case, although three of the seven judges dissented, it was not questioned by any of the judges that the Scottish Land Court was a court of law in every way. Further evidence from the same Act, Section 3 (2), is that the Chairman of the Scottish Land Court has the same rank and tenure (and this is a quotation from the Act):
  "as if he had been appointed a judge of the Court of Session."
  The Scottish Land Court, also, is mentioned in the First Schedule to the Legal Aid and Solicitors (Scotland) Bill among the courts in which legal aid may be given. I hope that I have convinced the noble Lord that the Scottish Land Court is an ordinary court of law, and that his Amendment is therefore unnecessary.
  LORD CLYDESMUIR: My Lords, accept the noble Lord's view that the Amendment would be more appropriate in Clause 4. In view of the assurance which he has given, and of the quotations which he has read to the effect that the Scottish Land Court can be regarded as an ordinary court of law, in every sense of the word, I do not think my Amendment is necessary. I have no doubt that your Lordships will be vigilant to watch that in the future that court will be regarded as an ordinary court of law and that its useful functions will not be entrenched upon. I beg leave to withdraw my Amendment.
  Amendment, by leave, withdrawn.
  3.37 p.m.
  VISCOUNT SIMON VISCOUNT SIMON moved, after Clause 1, to insert the following new clause:
  Power to determine Appeal against Development Charge
  " . Any person aggrieved by the determination of a development charge by the Central Land Board under section seventy of the Town and Country Planning Act, 1947, may within twenty-eight days of the receipt by him of the notification of the development charge, appeal against such determination to the Lands Tribunal and the Lands Tribunal shall have jurisdiction to hear any such appeal and shall make such determination as it may think fit and section three of this Act shall apply to an appeal under this section."
  The noble and learned Viscount said: My Lords, this Amendment has been put down by some of my noble friends and myself in order to raise at this stage of the Bill what I hope many of your Lordships will feel is an important question, and I have reason to think that the suggestion it contains is favoured by a good many members of your Lordships' House. To make the matter quite clear to those who have not had occasion specially to study it, perhaps I may just say that the Town and Country Planning Act, 1947, puts certain duties upon the Central Land Board, one of which is mentioned in Section 60 and another in Section 70. So far as Section 60 is concerned, as your Lordships may recall, what is to be determined there is what is called development value—admittedly a rather complex question which requires an understanding and experience of the valuation of land. That question bears upon the claims which many people may have on that global sum of £300,000,000 which is dangled before a certain number of anxious persons and which in the course of time they will scramble for.
  By this Bill, that jurisdiction of the Central Land Board is—very properly I think—transferred to the new Lands Tribunal, and on the Second Reading the Lord Chancellor explained to us clearly how that Tribunal would be constituted. It is not to be purely a legal Tribunal. It will have a President who is a lawyer, and possibly some other members who will also be lawyers, whilst other members will be persons who are specially skilled and experienced in valuation. The actual wording used is:
  "persons who have ha d experience in the valuation of land appointed after consultation
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  with the president of the Royal Institution of Chartered Surveyors."
  So far so good; but as I have said, the Town and Country Planning Act also contains, in Section 70, another case in which the Central Land Board is given jurisdiction, not to settle development value but to settle an equally complicated matter—that of the development charge, which, if I follow the Act correctly, is to be arrived at by contrasting what is supposed to be the value of land after permission has been given for development with the smaller value of land before it has been given that permission. I do not think it can be disputed that that question, if it is to be properly answered, also requires a fairly accurate application of the art and skill of valuation. I am certain that those who undertake this now do so with the best intentions, and there is no sort of criticism to be made of their good faith.
  The question is: In the case of a dispute about the original decision, should not that question also be decided by this new Tribunal, which is specially qualified for such purpose s, because as things are, there can be no doubt that since the Act was passed there has been a great deal of feeling and some discontent about the way in which development charges have been fixed. How are they in fact fixed? The Statute says they are to be fixed by the Central Land Board. In practice, they are ascertained—or, at any rate, in the first place they are sought to be fixed—by a district valuer, who acts, I suppose, as an agent of the Central Land Board. When a figure has been arrived at, it is approved and certified by the Central Land Board. And that is the amount, that has to be paid. When you ask how it comes about that you are requested to pay that sum, in many cases no answer is given at all. In practice, as it has developed since the Act passed, the man who asks how it comes about that the calculation is made, is simply told that that is the figure he has to pay. Among the owners of both large properties and much smaller properties a great deal of feeling has undoubtedly been aroused. People consider that this method is arbitrary and unfair, and that one person does not know if he is being treated on the same lines as another.
  In this connection, I must remind the House that the situation is quite different

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  from that visualised when the Town and Country Planning Act was passed in 1947. At that time the Standing Committee in another place had before it an Amendment which would have enacted that, before the development charge was fixed, there ought to be the provision of the details, facts and calculations which would enable the person who was to be called on to pay to know how the figure was ascertained. If he does not know that, he has not even an opportunity of correcting a mistake, let alone of knowing whether he is being treated on equal terms with other people in other parts of the country who are being dealt with by other valuers. I would remind the House that at that time the Minister, while rejecting the Amendment, assured the House that really the Amendment was asking only (as he put it) that the Central Land Board should behave in a decent manner and should not act arbitrarily, that they would be prepared to listen to representations made by people in respect of development rights.
  The Minister went on to say that the Government could not put in an Act of Parliament the provision that people should behave decently, and added that it was his intention, as it was his job, to see that the Central Land Board did act in the right spirit. There can be no doubt as to what was meant by the Government when that was said, because the Minister went on to draw a comparison with the way in which things were done when a claim was considered under the War Damage Act, and he pointed out that that was the spirit in which this proposal would be worked. He claimed, and rightly claimed, that the War Damage Commission were always ready to listen to representations made, and to disclose what could fairly be disclosed, in order to satisfy any person before them that he was being fairly treated. That is not what happens now, and I am sure that other noble Lords can testify to this at first hand. I have had a lot of evidence of this, though I have had none in my own experience. I am not concerned with paying development values, as I do not own any land where that question arises.
  What happens is that again and again a man, whether he be small or great, who knows that he has to pay something
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  for development value if he is given leave to develop, is told that he has to pay a certain amount. It is a lump sum—sometimes a very considerable sum. If he says, "But how do you arrive at a figure like that? What is the calculation which leads you to that conclusion?" he is told, "That has nothing to do with you. I tell you that that is the amount, and as it is the amount certified by the Central Land Board, pay it you must, or proceedings can be taken against you." Is that a satisfactory state of affairs? It is entirely contrary, I am sure, to the intention of Parliament when that Act was passed. I am not blaming the ideal of planning when I say that if we want planning to succeed, we must carry it out in a way which will ensure its having the good will and consent of the people of this country. That is why I venture to move this Amendment.
  I must add that this proposal, or something very like it, was inserted in the Town and Country Planning Bill when it came before this House, and was agreed by a majority. If the Bill went back to another place and that place, in its wisdom and on the Motion of the Government, rejected the proposal of your Lordships' House, that is a fact which we have to weigh, because I imagine that in this, as in most other matters, we desire to give weight and consideration to the views expressed in another place on our own Amendments. That is certainly my wish. But there is this distinction: We in this House carried that Amendment before the Bill was passed, without any experience of how the Act would be worked. I defy anybody to deny that in this respect this Act is regarded by large parts of the population as working arbitrarily and unfairly. Once that is established, the case for making this change now is not a contradiction of what was decided when the Bill was passed, but an attempt to provide for what, in practice, was found to be a very unfortunate gap in our legislation.
  I hope that this Amendment will be carefully considered. It is not put down with a desire to interfere with the proper working of this most important scheme, but it cannot be right that what is, in effect, a great tax should be demanded lawfully from members of the public without giving them the slightest chance of understanding, how or why it is arrived

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  at; that they should simply be told: "You will just take it, and you are not allowed to have any information as to how it is arrived at." Is that not a matter of land valuation? Of course it is. I apprehend, whatever else is done to calculate a development charge, that the responsible authority often proceeds by saying: "Thanks to this development, there will be an increased annual value to this property," and they fix that figure according to local conditions or comparisons. They then decide what is the proper number of years' purchase by which to multiply that annual value, and thus arrive at a figure. Those are exactly the considerations which all of us who have had to do with this subject matter know have to be weighed in a valuation tribunal.
  I recollect that at an earlier stage my noble and learned friend the Lord Chancellor said that he did not think it would be a good plan for an appeal to go to a High Court Judge on a mere matter of valuation. To some extent, I sypathise with him in that view, because I do not think a man who happens to be learned in the law is necessarily a good man to value land, any more than he is to value cattle, or anything else. But this Tribunal which the noble and learned Viscount is now setting up under this Bill is not a Tribunal staffed by judges, but a Tribunal which consists, as I have said, of persons who have experience in the valuation of land, appointed after consultation with the President of the Royal Institution of Chartered Surveyors. Surely, in case of a challenge, there could not be a more appropriate body to pronounce than a body staffed in that way.
  There is one other point that I would like to mention. It might be said—although I think it would be deplorable if it were—that this provision in the existing law, that a man has to "plan" a development charge, is so incomprehensible, and impossible to arrive at by any process of deliberate reason that there is nothing to be done about it but to leave it to an official to say: "That is the amount you pay, and that is the end of it." I cannot believe that at this time we shall be told that that is a good method of fixing the amount of anybody's tax. But, as a matter of fact, the present body, the Central Land Board—who, of course, do their best—have done what they could to develop a system by issuing what I
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  think are called "Practice notes." When you look at these practice notes, which are designed to help the valuers all over the country, what you find is, first of all, that the Chairman of the Central Land Board, a most distinguished gentleman, has written this:
  "A study of these notes will show that 'value' has many meanings and that to adopt one common meaning for all cases must produce absurd results in some. We have been given the discretion to decide which is the fairest to adopt in each case, and have stated some of our present views in these notes."
  When I turn to page 11 of the notes, I find some two or three pages in which this valuers' guide proceeds to quote a series of legal decisions, from the House of Lords downwards, for the very purpose of guiding these people as to how they ought to arrive at this figure, which they arbitrarily—or at any rate without explanation—pronounce. That fact is enough to show that this is a serious subject which ought to be dealt with by a body suitably staffed. Therefore, without occupying more time—especially as I understand that there is a statement now to be made on another matter—I beg to move Amendment, and I hope that it may receive support in other quarters of the House.
  Amendment moved—
  After Clause 1, insert the said new clause.—(Viscount Simon.)

  FOUR POWER AGREEMENT ON GERMANY
  3.55 p.m.
  THE LORD PRIVY SEAL (VISCOUNT ADDISON): My Lords, I sincerely apologise to your Lordships far having to interrupt the Report stage, but I am sure that in the circumstances I shall be excused. I have to inform your Lordships of a Statement that is being made this afternoon in another place by my right honourable friend the Secretary of State for Foreign Affairs in these terms:
  "Agreement has been reached in New York between the representatives of the four Occupying Powers in Germany for the removal on a reciprocal basis of all restrictions on communications, transport and trade between Berlin and the Western Zones and between the Eastern Zone and the Western Zones of Germany which have

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  been imposed since 1st March last year. The date for this removal is May 12.
  Agreement has also been reached to call a meeting of the Council of Foreign Ministers in Paris on May 23 to consider questions relating to Germany and problems arising out of the situation in Berlin, including the question of currency in Berlin.
  In simple terms this means that agreement has been reached to lift the blockade of Berlin and that the way is now open for the Four Powers to discuss the German problem in all its aspects.
  His Majesty's Government welcome this agreement. As the House will be aware, it was not we who were responsible for the breakdown in the Four Power arrangements for Germany, and at all times we have been ready to discuss Germany with the other Occupying Powers, but we could not do so so long as the duress continued. This is now to be removed.
  The people of Berlin have borne their ordeal with courage and restraint and their resolution has helped to make this agreement possible.
  I should like to thank the House for the support which we have received throughout, and I feel sure that the agreement which has now been made shows that the firm yet reasonable policy which we have followed has in fact been fully justified by the results.
  His Majesty's Government will approach the new meeting of the Council of Foreign Ministers in the same spirit of firmness and reasonableness. I am hopeful that the basis for an enduring settlement of the German problem will be found at the forthcoming meeting. We shall not abandon in that settlement the principles for which we have always stood in Germany.
  And now let me say this. We have succeeded in standing firm in Berlin because of the airlift. I have paid tribute to the airlift before, but now more than ever is it right to say how much this country owes to the skill and devotion of the crews and groundstaff, both British and American, who have taken part in this gigantic operation. It will continue until the situation has
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  been finally cleared up, but I am sure that the House will agree with me that no praise and no thanks can be too much for the men who have contributed to its success.
  Finally, I should like to tell the House that I propose to visit Berlin on Saturday in order to see the airlift in operation and to convey the thanks and congratulations of His Majesty's Government to all concerned for all that they have done."
  3.59 p.m.
  THE MARQUESS OF SALISBURY: My Lords, I should like to thank the Leader of the House for the very important Statement he has just made. We, who have only just heard it, will clearly wish to study it so that we may understand exactly what is involved. I listened very carefully to what the noble Viscount said, but I am still not quite certain about the meaning of certain sentences in the Statement. I do not want to ask anything improper, but if the noble Viscount will forgive me, I would like to ask whether he can tell me how wide are the subjects to be discussed by the Council of Foreign Ministers. As I understand it, the Council—the noble Viscount was good enough to let me see a copy of the Statement just before he rose—is to consider questions relating to Germany and problems arising out of the situation in Berlin, including also the question of currency in Berlin. I hope we can have an assurance here that in these conversations there will be no question of the abandonment of all the work that has been done in setting up Governments in Western Germany, because that would be a very unfortunate thing.
  Having said that, I of course agree with the noble Viscount that this is news of the first importance and fraught with happy possibilities for the future. On behalf of those who sit on these Benches—and I am sure I represent their views—I should like to congratulate His Majesty's Government and all the other Governments who have been engaged on the success of their long and patient endeavours. I would like to say how much we all welcome the relaxation which we hope this new development may portend for the international situation as a whole. In particular, if I may, I would emphasise this. It seems to me that this is not a moment for

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  "blowing our own trumpets" or for claiming victory. Indeed, that might undo all the good which has been achieved. This must be regarded as a victory of common sense on the part of all concerned, and I think we may all hope that it will lead to further moves in the same direction. So far as this country is concerned, I would agree with what was said by the noble Viscount, that, in the international field, our policy must remain what it has been in this matter, a policy reasonable but firm. I believe that that is the only basis upon which enduring peace can be built. Before I sit down I would like to re-echo most sincerely what was said by the noble Viscount with regard to those very brave men, both in our own Air Force and in the other Air Forces, who carried out so courageously and with such endurance the burden of the airlift. It is to them, of course, that must go the main credit for this happy result which has been achieved. We owe them a debt which we can never repay, and I think that we in this House should thank them to-day from the bottom of our hearts.
  4.3 p.m.
  THE MARQUESS OF WILLINGDON: My Lords, may I express the regret of my noble Leader, Lord Samuel, and the Deputy Leader, Lord Perth, at being unable to be here owing to unavoidable circumstances? I know that on behalf of my colleagues on the Liberal Benches I can say how much they welcome the Statement which the Leader of the House has just made, and how much we all admire the typically British attitude of the Secretary of State for Foreign Affairs and his colleagues. May we ally ourselves in the message which the Secretary of State is taking to all those concerned in the airlift? I notice they are not actually mentioned in the Statement, but I know, of course, that it includes all the civil and ground crews, as well as the military. I do not think that the co-operation and patience of the people in Berlin should be forgotten to-day, and in welcoming the new conference may we say from this side of the House that we hope it augurs well for a better understanding among all the peoples of Europe?
  VISCOUNT ADDISON: My Lords, I thank the noble Marquess for what he
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  has said, and I cordially concur in the general view which he has expressed. The words of the Statement were, of course, carefully chosen as to the purpose of the meeting which is to be held, and I am sure the noble Marquess would not expect me to add to them at such short notice. I am sure he took note of other words which were very deliberately included, to the effect that we shall not abandon in that settlement the principles for which we have always stood.

  LANDS TRIBUNAL BILL
  4.5 p.m.
  Report stage resumed.
  LORD HYLTON: My Lords, the merits of the Amendment we are now considering have been so clearly expressed by the noble and learned Viscount that I think it is clear to your Lordships that some such appeal to the Lands Tribunal should be granted on this question of the assessment of development charges. I know that your Lordships like having examples of how this particular piece of legislation—that is to say, the assessment of development charges—is working today. This is, of course, a completely new piece of legislation, and I think we all have great respect for the method which the Central Land Board have adopted in trying to cope with the enormous duty which has been thrust upon them. Nevertheless, it is perfectly true to say, as my noble and learned friend Lord Simon has said, that the developer himself does not always get the basis of the assessment of the development charge. This is a matter of such great importance that I think I should mention a case to your Lordships, because the development charge, as is well known, falls on all classes of change of user of existing buildings, provided it is not within the same technical class. Therefore, we are not dealing this afternoon with a question which affects a few people, but one which affects the owners of quite small houses and quite small businesses, as well as those with much larger interests.
  The case I should like to quote to your Lordships is as follows. There is a lady who owns and manages a small nursing home for elderly persons. This is a medical, and not a surgical, nursing home. She found that she was able to

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  acquire a premises more or less compatible or comparable with the premises she already occupied, but which was more convenient because the stairs were not so steep as those in the house in which the nursing home was established. She proceeded, and events, of course, proved that she proceeded unwisely, to purchase those premises. The sum which was paid was £4,700, and the contract and purchase was completed in September of last year. She then applied, through her solicitors, for the development charge to be assessed. In a few weeks she was told that the development charge for moving the existing nursing home to similar premises would be£1,943. The figures were so staggering—as I am sure many of your Lordships will agree—that the lady then proceeded to ask how this enormous assessment had been arrived at. In this case, but in this case only—because my noble and learned friend has already said that in many cases the district valuers will not disclose the basis of assessment—she was told how it was arrived at, which was as follows.
  The valuation was based on the difference in the hypothetical rents of the house as a private residence and as a nursing home. These rents were taken as follows: the rent as a residence was taken at £200 a year, and as a nursing home at £330 a year. All I can say about that is that £330 might possibly be the rent for it for a nursing home, but there is no certainty in the matter, because surely the basis for that sort of calculation would be whether it was possible to make a profit. Well, one person can make a profit and another can lose it; but to say that that is a firm basis is a proposition which I find very difficult to accept. The difference between these two rents, then, was £130 a year, and the basis was a 6 per cent. valuation, which produced £2,158, less a 10 per cent. private risk of £215, which gets us back to the figure of £1,943. Your Lordships will notice that the value of the house was only £4,700. Here we have a development charge of nearly £2,000, which is practically speaking 50 per cent. of the value of the premises, charged on this lady—for what? For moving her nursing home from one house to another.
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  Now we come to the process that has recently been described in this House as "higgling the market." This was a case of higgling the valuation. The higgling started towards the end of October of last year, and in April of this year the Central Land Board wrote to the solicitors of the lady concerned to say that £1,000 was a reasonable development charge. That was very successful higgling—but it is not really a suitable method to be adopted by the majority of people who have to carry out development, because it shows that enormous variations in valuation can be obtained by higgling. Your Lordships know the results of higgling, because it is well known that every form of "spivery" arises from higgling. That, I think, must be acknowledged and (although I regret it if the word is not a Parliamentary one) there is no doubt that "spivery" does exist. I think your Lordships will appreciate that this higgling is not really a practice that should be condoned.
  But that is not quite the end of the story, because, subsequent to this second development charge of £1,000, the Central Land Board intimated to the solicitor that a further reduction might be made in this development charge if the lady were to go to the local planning authority and apply for a limited planning permission—that is to say, a planning permission limited in time—because the present planning permission was unlimited: it was permanent planning. But if she went to the local planning authority and said in effect, "Give me three years or five years or perhaps ten years planning permission," she might get a lower development charge. That, however, is not strictly true, because in paragraph 122 of the Practice Notes of the Central Land Board we find that when a limited permission to develop is given by the planning authority, the development charge to start with is lower; but as soon as the limited period comes to an end, then a fresh development charge will be made. It is perfectly clear. Perhaps your Lordships will allow me to read the effective words:
  "At the expiry of such a period,"
  and that period is a limited planning permission—
  "if it is desired to continue the use, a new D.1."
  D.1. being the appropriate form
  "must be submitted and a fresh development charge paid."

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  That is perfectly clear, and therefore I think that the last notification from the Central Land Board must have been sent in error.
  But your Lordships will observe the length of time that has elapsed. All this started last September or at the beginning of October, and it is now May; and this development charge is still floating about. This lady does not really know what she will ultimately pay. And that is only one case—there are hundreds of others. I think the noble and learned Viscount, in moving this Amendment, raised the point that great discrepancies arose between one development charge and another; and of course that is perfectly true. I will quote only one example, and that is the case of two houses that were added to a commercial college which teaches shorthand, typewriting and other subjects. In this case two houses were purchased for a somewhat larger sum and the figure in question was for two fairly large houses. The commercial college paid £6,300 for them, and they were added to the building. But the development charge in this case was only £80. It seems to me that £80 for a quite large addition to a commercial college is a low charge. I also feel that a development charge of either £2,000 or £1,000 for a nursing home is extortionate. And that, surely, must be an overriding reason why some form of appeal should be allowed to the ordinary citizen. At the present time he is defenceless once the development charge has been finally fixed; there is no appeal. I believe that, this being a form of taxation which has to be paid in a capital sum before the development takes place and before any profits can be made out of which to pay it, it is only just and fair that it should be possible for the figures to be taken to some independent body which, in this case, we know, consists not only of lawyers and others skilled in the law but valuers as well. This kind of case could well be taken to the Lands Tribunal.
  4.19 p.m.
  THE LORD CHANCELLOR: My Lords, it may be for your convenience if I intervene at an early stage, since we have a great deal of business before us, and it is out of no disrespect to the arguments which have been advanced if I say that I cannot accept this Amendment,
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  or anything like it. This is a small Bill dealing with procedure, and your Lordships are tying such a big brick round the neck of my poor little kitten, that I say at once that, if this Amendment were to be carried, and I had the choice of either having this Bill drowned or having this Amendment, I should drown the Bill. In fact, we are fighting once more the very fight which we had but a short time ago. During the discussions on the Town and Country Planning Act of 1947, your Lordships in this House proposed that there should be an appeal to the War Damage Valuation Appeal Tribunal, and an Amendment to that effect was carried against the Government. In Standing Committee in another place, a similar Amendment was moved; it was there rejected. A similar Amendment was subsequently moved in Committee in this House, and on a Division was carried against the Government. That was on July 4, 1947. I am sorry to say that I then inflicted upon your Lordships a long speech on the topic. The matter went back to another place, and they rejected the Amendment which your Lordships had carried; your Lordships then acquiesced.
  Now it is for your Lordships to say whether or not you again desire to carry this precisely similar Amendment. We are quite unable to accept it, and whether, when it goes to another place, your Lordships will accept it being "stricken out" (if I may use the American phrase), I do not know. If not, it is better that this Bill should be drowned, because I firmly believe that the fallacy underlying this Amendment is that you can necessarily get a better decision by having a hearing before an appeal court. When that very great Liberal Lord Chancellor, Lord Selborne, some eighty years ago was discussing the question of the abolition of the double appeal to the House of Lords, his argument used to be this: "Either the House of Lords is better than the Court of Appeal or it is not. If it is better than the Court of Appeal, then do away with the Court of Appeal and go straight to the House of Lords. If it is not better than the Court of Appeal, for heaven's sake do not have an appeal to it." There was a time when double appeal was in fact done away with. I feel that the present Tribunal, presided over by Sir Malcolm Eve, consisting, as it does, of lawyers

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  and surveyors, is the best that we can devise but, if this Appeal Tribunal which is to be constituted is better than the present Tribunal, let us sack the existing Tribunal and have the Appeal Tribunal. If it is not better, then do not have an appeal from the existing Tribunal to the new Tribunal. You would not be better off, but you would have unconscionable delay, and the whole thing would be held up more than it is to-day.
  I have had a great many letters about all these matters, but I have not yet come across any case of complaint, except that of delay. I have had many letters about the delay which has been caused in the operation and the functioning of this body, but not one single case of objection as to the conclusion to which they have come. In the vast majority of cases, they have come to a conclusion by agreement. And, when all is said and done, I think that is the best way to come to a conclusion. People are satisfied that there is a fair compromise. Of course, in this case there must be a good deal of discussion. I do not want to go back again to the old arguments, which I advanced before, as reported in Columns 834 to 838 of Hansard, as to what it all means. I then pointed out that it was inevitable in this case that there should be discussion, coming and going, giving and taking, and as the noble Lord who last spoke seems to think that there is sure to be corruption—if that is what "spivery" means—I can imagine no court which is less likely to be corrupt than that presided over by Sir Malcolm Eve. Indeed, I am a little surprised that that suggestion was ever made.
  May we consider what the Tribunal have to do? I agree that their task is a difficult one, but I do not think it advances the matter one iota to compare two cases when we do not know all the relevant facts of those two cases. Your Lordships, by affirmative Resolution, passed a Regulation under the Town and Country Planning Act dealing with the development charge. Let us see what the Tribunal have to do, and then ask ourselves why the proposed new Appeal Tribunal should be in a better position than the original Tribunal. The Regulation which we passed stated:
  "The development charge shall be determined so as to secure, so far as may be practicable,
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  that land may be freely and readily bought and sold or otherwise disposed of in the open market at a price neither greater nor less than the value for its existing use."
  That is a vague aspiration, but it is subject to very wide discretion. I have yet to hear anybody who has been able to define with precision what a development charge is. I do not believe that you can have an appeal of a quasi-judicial nature in regard to something which cannot be altogether defined.
  As I told your Lordships on the last occasion, my conception on this point is this. I likened this body to a good landlord, and the noble Marquess, Lord Salisbury, said that he was tired of the fulsome praise which I showered upon the good landlords. As part of their task, I still think that the Tribunal should try to act like good landlords, remembering that they have something to sell. It is true that they have a monopoly. They have the development rights but, like the Crown Lands Commissioners, they have something to sell; and as they are a public body they have to try to dispose of that something which they have to sell in the public interest so as, on the one hand, to get the best prices they can—because this is going to be our return for our £300,000,000—and, on the other, not to impede or prevent the proper and useful development of the land. You must think of the particular area in which the development is sought, and of the nature of the development. You must form some conclusion as to whether that particular development is or is not a desirable development.
  The noble and learned Viscount, Lord Simon, said he was inclined to agree that that was not a matter for a judge. I quite agree. I have too much respect for the judges to want to have them mixed up in what is a semi-political matter. That would be disastrous. I really cannot see that there is any evidence that this court which it is desired to establish would be one whit better than the existing body. The existing body make proposals; they have discussions; representatives come and, if the district valuer does not give satisfaction, they can go to the headquarters and see the people there and can complain that the district valuer has neglected this, that or the other. In the vast majority of cases, there has been agreement. Although I have had a great number of complaints about

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  all sorts of matters, as your Lordships may well imagine, I have not had one case where anybody has complained to me about this matter. Therefore, I say, let us leave it to this court. Let us not try to pretend that this is a justiciable matter which is subject to appeal in the ordinary way, because it is not. It is a matter of administration; it is a matter of persons who hold something which they have to sell. They have the exceedingly difficult task of trying to fix in each particular case what is the appropriate development charge; and they do so by means of trial and error.
  I have intervened at this stage, because, while I know that, if your Lordships so desire, you are able to insert this Amendment in the Bill, I thought it would be useful if I were to explain our view of the matter. We are not prepared to accept this Amendment. It may be that it will go to another place and they will take the same line as before, and then your Lordships will once more have to consider the position—and you are much better able than I am to judge whether this new Tribunal is desirable. If your Lordships say it is, so be it. But we have fully considered this matter and, I say quite frankly, so disastrous should I regard the effect of having this Appeal Tribunal, which would produce only chaos and delay, that I would far rather take my little procedural Bill and tear it up. That being so, your Lordships will forgive me for intervening at this early stage, and telling you exactly how we feel about this matter. Your Lordships can insert this Amendment if you so desire. There is a risk of errors being made; there is a risk of hardship being done—I accept all those things. But my point is that there is no less risk of all these things if there is an appeal to the other Tribunal, and there is much greater certainty of delay. Therefore, I invite your Lordships not to insert this Amendment.
  4.32 p.m.
  VISCOUNT SWINTON: My Lords, we are grateful to the noble and learned Lord Chancellor for having intervened at this stage and leaving us in no doubt as to his opinion and the opinion of the Government. I think it would perhaps be convenient if I intervened now to say equally definitely, upon the advice which
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  I and my friends on this Bench would offer to your Lordships, the House will have heard with profound dissatisfaction the speech which the Lord Chancellor has made. I do not in the least mind his putting the ease strongly, but I am bound to say that I have seldom heard a worse argument from a great advocate, because, with great respect to him, he is entirely, I will not say mis-stating the issue, but begging the issue. In a sentence, the argument of the Lord Chancellor is: "You can do as you please, but this subject is res judicata. We had it all out before and your Lordships took a view, another place took a view, and the whole matter was decided."
  I submit that it is not in the least res judicata but that a wholly new set of circumstances has arisen. Even supposing we were having second thoughts upon this matter, is that an unreasonable thing to do in a rational and reasonable assembly? When the Regulations carrying out the Bill were produced for approval to this House by the Minister in charge—Lord Henderson, I think it was—he began by saying, "This is quite a different principle from that which we had originally contemplated in the House." The 100 per cent. was, I believe, to be 100 per cent. of charge, instead of 100 per cent. of value. Flow did Lord Henderson justify that? He said, "This is a very difficult situation"—we all agree about that—"and the Government have had second thoughts." If it was right for the Government to come forward with a complete change of procedure in the Regulations from that which they had recommended to the House in the Bill, on the faith of which we were invited to pass the Bill, and to say, "We made a mistake about this matter and we have had second thoughts," then equally, if we think a mistake has been made, if we think an injustice has been done, I say we are entitled to have second thoughts; and I really should have thought we might have been met on that matter in a more reasonable manner.
  But it is not only a question of having second thoughts; a wholly new situation has arisen. When the proposal that there should be an Appeal tribunal under Section 70 was previously before your Lordships, the whole structure of the Bill was to the effect that there was to be

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  no appeal under Section 60. But the Government have come forward now with an amending Bill in order to give an appeal under Section 60. If it is right to give an appeal under Section 60, which is certainly no more difficult than this very much complicated matter, why is it illogical, or unreasonable, to give an appeal under Section 70? What is more, we hope, as a reasonable Assembly, to profit by experience. When we were passing the Bill, a good many of us had a number of anxieties as to how it was going to work. It seemed to be a Bill not for developing the estate of the Realm but for stagnating or sterilising the development of the Realm, and I am bound to say that in the light of experience I think our fears were justified. But we have had practical experience now, and really the Lord Chancellor must have what I believe is called a "fan mail"—he receives only the letters from those who approve. After listening to the speech of Lord Hylton to-day, I am surprised that the Lord Chancellor should rise to say, "I have no knowledge of any dissatisfaction over the values that are assessed." He must be almost the only member of your Lordships' House who has not heard of such dissatisfaction.
  Then it is said that the claimant gets satisfaction, in that he can go to Sir Trustram Eve if he does not like the way that the officials have done their business. Incidentally, I have not yet heard any answer in the debate to the challenge that we were promised, I think here, certainly in another place, when the Bill was going through, that these district valuers, the deputies of Sir Trustram Eve throughout the country, would give to the claimants, to the taxpayer, the person who is being assessed, all the particulars—that they would give the figures on which they based their calculation; the only thing on which you can do the "higgle" or the "jiggle," the process through which we have to go. It has been asserted to-day—and I have had examples given me from many quarters, in great cities and in the country—that some valuers may give these particulars but others are refusing absolutely to give them. That pledge, however, was given, and there has been no answer to the question why is not effect being given to the undertaking that the figures will be given.
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  Then it is said: "If you are dissatisfied with the figures of the district valuer—which you are not allowed to see in spite of the promise which was given to Parliament that you should be allowed to see them—you can make an appeal to Sir Trustram Eve." He is a very able man. I am sure he does his best, and we do not want to attack him. The noble and learned Viscount says that he has never heard of anybody being dissatisfied. But the wretched claimant has to go to Sir Trustram Eve who, for all his ability, is the tax collector; he is the man who levies the tax in this matter. I suppose I should not be irreverent or irrelevant in saying that all you can do is to
  "Agree with thine adversary quickly whiles thou art in the way with him."
  No doubt you settle on the best terms Sir Trustram Eve will give you. What other alternative have you? If you do not settle and do not say "All right, I am content," or "I accept," or "I pass," or whatever is the right formula to express when this judgment has been given you, it does not make any difference, because you get the bill and you must pay it; there is no appeal.
  However difficult this question may be, I should have thought there were one or two principles which apply in taxation—and after all, this is taxation, and nothing else. The first principle is that it should not be arbitrary. Here it is entirely arbitrary. Sir Trustram Eve and his assistants, however able and distinguished they may be, are there to assess, to lay down, to acquire in an absolutely arbitrary manner, and the taxpayer has to pay. There is another principle I should have thought was elementary in taxation. There has hitherto always been a right of appeal. I think I am right in saying that when I am assessed to income tax I am entitled to appeal on a principle of taxation. As the noble and learned Viscount, Lord Simon, says, another principle is that of equal treatment. What guarantee is there here of equal treatment? There are certainly no guarantees of equal treatment by these different district valuers. The cases stated—and your Lordships may multiply them from your own experience—show that although there may be the best will in the world, one thing there is not in the assessment of this tax and that is equality of treatment. Nor is there equality of treatment when you get to the top and get an assessment.

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  Another principle was that when taxation was levied you had certainty in so far as you can have certainty—it cannot be certainty in the sense of complete uniformity, but surely certainty in the principles and method by which the tax is assessed. Indeed, what did the Lord Chancellor himself say in another connection as justifying the Bill? He said—I think I have his exact words—that it was highly desirable that there should be "an authoritative and co-ordinated set of principles." That is what we are asking for in this Amendment—an authoritative and co-ordinated set of principles. We are asking that these principles shall be applied equally and fairly by all officials throughout the country, that these principles shall be laid down by an able, practical and experienced independent Tribunal, a Tribunal which the Lord Chancellor himself says is the right Tribunal to decide under Section 60. The Tribunal, he says, ought to be the rating authority for the whole country, and we have accepted that. We say, in this entirely new set of circumstances, with experience behind us and having regard to the arguments which the Government themselves have advanced for creating this new authority under the Bill, that all logic, all common sense, all justice, lie in giving to this appeal tribunal the powers which this Amendment proposes to give.
  4.43 p.m.
  LORD LLEWELLIN: My Lords, I have my name down to this Amendment, and although I am not going to repeat the arguments which have already been put forward, I would like to place before your Lordships two sets of facts. I know of a case in which a house was built in Selby, Yorkshire, and a development charge of £144 was assessed upon it. Another house of similar size, a farm house, which was made by the conversion of a barn at Paignton, Devon, had an assessment for development charge of £750. There you have two houses—one at Selby, Yorkshire, assessed for development charge at £144, and a farmhouse made by the conversion of a barn, down in Devon, with development charge assessed at £750. What has to be realised is that this development charge is being levied where the same set of buildings is to be used for different purposes.
  I will give your Lordships an instance of how arbitrary these charges may be.
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  As some of your Lordships may know, the Union Club is being turned out of its premises in Carlton House Terrace by a Department of His Majesty's Government. I am not complaining of that, because I believe the whole of Carlton House Terrace is being used for Government offices and it is their property anyway. The Club authorities looked round for a new site. They settled upon one and had almost agreed to purchase two houses, Numbers 33 and 34, Grosvenor Square. The only thing that had to be done was to alter those two private dwelling houses in such a manner as to turn them into a refuge for the members of the Union Club. They went to the Central Land Board—I should say that they cannot alter the frontage of Grosvenor Square or do anything like that—and what do your Lordships think was the assessment made? It was £60,000. Think of it, my Lords, a charge of £60,000 for changing the user of two private houses in Grosvenor Square to fit them for the purposes of a residential and private club!
  Let me tell you what happened further, in order to show how arbitrary this figure was. The agents for the Club went to the Central Land Board and argued with their representatives. Almost immediately, the figure was reduced to what I still think is a most excessive figure—namely, £35,000. That was the figure proposed to be charged for using these buildings for the purposes of the club. There is, of course, a considerable difference between the first assessment of £60,000 and the second assessment of £35,000. That is the kind of thing which is being done by this Board which is not a tribunal at all, which never hears any witnesses or anyone's case. It really decides matters behind closed doors. That surely offends all our ideas of British justice. The question of this development value is just as judiciable a matter as is the settlement of rateable value of property. They run into exactly the same category. I suggest that we should get much more satisfaction if we agreed to this Amendment and had someone who could supervise the people who are doing the kind of things to which I have just referred.
  4.49 p.m.
  LORD BALFOUR OF BURLEIGH: My Lords, before your Lordships go to Division, may I add just one word? I

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  approach this matter, as do many of your Lordships, from the point of view of a person who has always been devoted to the principle of town and country planning. The noble and learned Viscount who sits on the Woolsack told us clearly what, in his view was at stake—he suggested that this might be the end of what he called his "little Bill." The point of view which I would press upon him is that something much greater than that is at stake. I approach this Amendment from the point of view of one who wants to make the Town and Country Planning Act work. What is happening now is that the Town and Country Planning Act is working extremely badly, and it is distressing to those of us who have always advocated a sound measure of town and country planning to find that this Act of 1947 is, in the opinion of many of us, really giving disastrous results. I was much relieved to hear the noble Lord, Lord Llewellin, give figures of rather larger size than were given in the previously cited examples. Those previously cited examples were almost small in scale. I do not mean by that that they were not of prime importance to the unfortunate people concerned: they certainly were. But that sort of thing is going on up and down the country.
  The noble Lord, Lord Llewellin, introduced figures of a more substantial character, but figures which are by no
  means large in the scale of values which are being considered in connection with development value to-day. There are sites the development of which is under consideration at the moment in the City of London and in the West End—the great trading parts of London—in relation to which literally hundreds of thousands of pounds of development charge are involved. The present arrangement is profoundly unsatisfactory. I am not going over the ground again, but we think that the district valuers, admirable as they are, are not always placed in a very easy position, and it is wrong that the final decision should rest with those responsible for levying the charge. I wish to make this plea to the noble and learned Viscount the Lord Chancellor. This change is really essential if the Town and Country Planning Act is to be made to work. Even if we make this change, I will not guarantee that the Act will be successful, because I think it will probably need amendment in other respects; but without this change it has not the remotest chance of being a success. Consequently, I beg the noble and learned Viscount not to close the door completely. In the circumstances, we are entitled to ask the Government to give this matter further consideration.
  On Question, Whether the said new clause shall be there inserted?
  Their Lordships divided: Contents, 68; Not-contents, 22.

  CONTENTS

  Rutland, D.

  Monsell, V.

  Hawke, L.

  Portman, V.

  Hindlip, L.

  Cholmondeley, M.

  Simon, V.

  Hylton, L.

  Salisbury, M.

  Swinton, V.

  Kenilworth, L.

  Willingdon, M.

  Trenchard, V.

  Llewellin, L.

  Mancroft, L.

  Airlie, E.

  Aberdare, L.

  Meston, L.

  Bathurst, E.

  Ailwyn, L.

  Monk Bretton, L.

  Buckinghamshire, E.

  Amherst of Hackney, L.

  Montagu of Beaulieu, L.

  De La Warr, E.

  Balfour of Burleigh, L.

  O'Hagan, L.

  Fortescue, E. [Teller.]

  Blackford, L.

  Polwarth, L.

  Graham, E. (D. Montrose.)

  Boyle, L. (E. Cork and Orrery)

  Roche, L.

  Iddesleigh, E.

  Carrington, L.

  Rochester, L.

  Lindsay, E.

  Cherwell, L.

  Rockley, L.

  Munster, E.

  Clanwilliam, L. (E. Clanwilliam.)

  St. Just, L.

  Onslow, E.

  Clwyd, L.

  Sempill, L.

  Clydesmuir, L.

  Soulbury, L.

  Bridgeman, V.

  Cranworth, L.

  Strathcona and Mount Royal, L.

  Buckmaster, V.

  Digby, L.

  Cecil of Chelwood, V.

  Gage, L. (V. Gage.)

  Teviot, L.

  Chaplin, V.

  Gifford, L.

  Teynham, L.

  Falmouth, V.

  Grantley, L.

  Tweedsmuir, L.

  Hailsham, V.

  Hankey, L.

  Wardington, L.

  Long, V.

  Hatherton, L. [Teller.]

  Wolverton, L.

  Maugham, V.

  NOT-CONTENTS

  Jowitt, V. (L. Chancellor)

  Ammon, L.

  Lucas of Chilworth, L. [Teller.]

  Amwell, L.

  Marley, L.

  Addison, V. (L. Privy Seal.)

  Chorley, L. [Teller.]

  Morrison, L.

  Crook, L.

  Pakenham, L

  Huntingdon, E.

  Darwen, L.

  Pethick-Lawrence, L.

  Henderson, L.

  Shepherd, L.

  St. Davids, V.

  Holden, L.

  Strabolgi, L.

  Stansgate, V.

  Kershaw, L.

  Williams, L.

  Winster, L,

  On Question, Amendment agreed to.

  Resolved in the Affirmative, and Amendment agreed to accordingly.
  4.59 p.m.
  Clause 4:
  Power to add to jurisdiction of Lands Tribunal
  (7) In this section the expression "statutory tribunal" means any Government department, authority or person entrusted with the judicial determination as arbitrator or otherwise of questions arising under an Act of Parliament, except that the expression does not include—
  LORD CLYDESMUIR LORD CLYDESMUIR moved to add to subsection (7):
  "(c) in Scotland the sheriff in any case where in any private Act of Parliament he is nominated as being the person by whom any question shall be determined in default of agreement between the parties."
  The noble Lord said: My Lords, this is an Amendment which will not endanger the life of what the noble and learned Viscount the Lord Chancellor has called "an innocent kitten." Its intention is to clear up a point which arose on the Second Reading of the Bill. It is the practice in Soctland, under a large number of private Acts, for the Parties to select the sheriff to decide the dispute. There seems no reason why this practice should be discontinued. It seems possible that under Clause 4 of the Bill the Secretary of State could decide to replace the sheriff by the Tribunal set up under the Bill. I may not be right in this assumption, but I move this Amendment in order that the point may be cleared up. The sheriff, as your Lordships know, is a useful and esteemed functionary in Scotland, and it would be a pity to deny the right of parties involved in disputes to choose the sheriff to decide such cases. I beg to move.
  Amendment moved—
  Page 8, line 46, at end insert the said paragraph.—(Lord Clydesmuir.)
  LORD MORRISON: My Lords, this is a similar point to that raised before. On this occasion the noble Lord has put his Amendment in the right place. As I have already said, subsection (7) of Clause 4
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  defines a statutory tribunal as any Government Department, authority or person acting as arbiter, but excluding any of the ordinary courts of law, or a tribunal consisting of one or more judges of any of these courts. I have spent some time in taking expert advice on this matter, and am advised that there can be no doubt at all that these words clearly exclude the sheriff and make the proposed Amendment unnecessary.
  LORD CLYDESMUIR: My Lords, I can speak again only with the leave of the House. As I understand the view expressed by the noble Lord, taken on legal advice, it is that the sheriff can still properly be selected by parties to decide such disputes. If that is so, I am content.
  LORD MORRISON: Yes.
  LORD CLYDESMUIER: Then I beg leave to withdraw the Amendment.
  Amendment, by lease, withdrawn.
  Clause 10:
  Short title, commencement and repeal
  (2) This Act shall come into force on such day as His Majesty may by Order in Council appoint, and different days may be appointed for Scotland and for the remainder of the United Kingdom.
  (3) The enactments specified in the Second Schedule to this Act are hereby repealed to the extent specified in the third column of that Schedule:
  THE LORD CHANCELLOR THE LORD CHANCELLOR moved, at the commencement of subsection (2) to insert: "Sections one to four of." The noble and learned Viscount said: My Lords, I think it will be convenient that in explaining this Amendment to your Lordships I should also mention the two following Amendments, at line 21 and line 23. The point is quite a simple one. The Bill does two things which are quite independent of the main purpose of the Bill, which is to set up the Lands Tribunal in place of the official arbitrators. The first thing, which is done by subsections (4), (11) and (12) of Clause 3, is to enable points of law to be taken, if

  371
  necessary, right up to the House of Lords, whereas at present, under Section 6 of the 1919 Act, they go only to the High Court or the Court of Session, whose decision is final. The reason for my desire to make this alteration is this. If there is a divergence of view between the two decisions, it is only by going to the House of Lords that a reconciliation between the view of the Scottish Courts and the view of the English courts can be obtained.
  The second thing, which is done by Clause 5, is to effect a minor procedural change about the withdrawal of notices to treat. Both these changes could and should be made, even if the official arbitrator system were continuing undisturbed. But, as the Bill is drafted, these changes come into force only on the appointed day which brings the Lands Tribunal system into being. It would not matter very much in England if the appointed day were to be very shortly after the Bill had obtained Royal Assent, but it now looks as if some gap will be inevitable, and some important test case, on which the parties ought to be able to have the most authoritative judgment, may arise at any time. The point is more important in Scotland where, as I said on the previous occasion, the appointed day will not be for some time after the Royal Assent has been given. It would clearly be wrong if appeal to the House of Lords were available in England but not in Scotland.
  The effect of these Amendments is to bring these two changes into effect in both countries on Royal Assent, instead of on the appointed days respectively fixed for England and Wales and for Scotland. Your Lordships see that the first Amendment provides that Clauses 1 to 4, instead of the whole Bill, shall come into force on the appointed day. The result is that the remaining clauses come into force on Royal Assent. Your Lordships will notice that Clauses 6 to 9 are, in any case, of no effect until Clauses 1 to 4 are in operation; so the only clauses really affected by the Amendment are Clauses 5 and 10. The purpose of the first Amendment is to bring Clause 5 into operation on Royal Assent. In so far as it also brings into operation on Royal Assent the repeals provided by Clause 10 (3) it goes too far, and this is put right by the third Amendment, at line 23. I beg to move.
  Amendment moved—
  Page 11, line 18, at beginning insert ("Sections one to four of").—(The Lord Chancellor.)
  THE LORD CHANCELLOR THE LORD CHANCELLOR moved, after subsection (2) to insert:
  "(3) References in this Act to the commencement thereof refer, in relation to any part of the United Kingdom, to the beginning of the day so appointed for that part, and the following provisions shall have effect as respects proceedings begun before the commencement of this Act, namely:—
  (a) subsection (2) of section six of the Acquisition of Land Act shall not apply to any decision of the High Court or of either division of the Court of Session giving the opinion of that court or division on a case stated under that section except a decision given before the date of the passing of this Act, and there shall be the same right of appeal against any such decision given on or after that date as against the final decision of an action in that court or division:
  Provided that an appeal to the House of Lords from a decision of a division of the Court of Session shall lie only with the leave of the division;
  (b) section five of this Act shall have effect with the modifications necessary to adapt it to proceedings before an official arbitrator instead of the Lands Tribunal."
  The noble and learned Viscount said: My Lords, this Amendment provides in paragraph (a) that between the date of Royal Assent and the appointed day, for each country respectively, cases on points of law stated by the official arbitrator for the opinion of the High Court (or, in Scotland, by the official arbiter for the opinion of the Court of Session) can be taken on appeal right up to the House of Lords, whereas under Section 6 (2) of the 1919 Act the decision of the High Court (or Court of Session) is at present final. The new provision applies to cases already pending at Royal Assent, but on which the High Court (or Court of Session) have not yet given their decision. Thus, in England, cases may go during this interim period from the official arbitrator to the High Court, and thence to the Court of Appeal and the House of Lords. After the appointed day the Lands Tribunal take the place of the official arbitrator, and the High Court drops out.
  For Scotland it is necessary to provide specifically that the leave of the Court of Session is necessary for an appeal to the House of Lords, because otherwise there

  373
  would be an appeal as of right—which is why the same provision is made in Clause 3 (12) (a). The Amendment says, by implication, that in England no leave is needed for appeal from the High Court to the Court of Appeal. But for appeal from the Court of Appeal to the House of Lords, leave either of the Court of Appeal or House of Lords is required, by virtue of the Administration of Justice (Appeals) Act, 1934, and nothing needs saying specifically. I beg to move.
  Amendment moved—
  Page 11, line 21, at end insert the said subsection.—(The Lord Chancellor.)
  THE LORD CHANCELLOR: My Lords, the next Amendment, as I have already explained, provides merely that the repeals consequential on the changes to be introduced on the appointed day are to be effective as from the appointed day: otherwise, the effect of the Amendment in line 18 would be to make them effective as from Royal Assent. I beg to move.
  Amendment moved—
  Page 11, line 23, after ("repealed") insert ("as from the commencement of this Act").—(The Lord Chancellor.)
  Second Schedule [Repeals]:
  THE LORD CHANCELLOR: My Lords, this Amendment is consequential on the Amendment to Clause 1, at page 2, line 23, I beg to move.
  Amendment moved—
  Page 15, line 60, at end insert—

  ("11 & 12 Geo. 6. c. 26.

  The Local Government Act, 1948.

  Subsections (2), (3) (4) of section forty-nine; in subsection (1) the words "or any county court" and the words "or county court" and in subsection (3) the words "or county court"; subsection (2) of section sixty-two; in subsection (2) of section sixty-seven the words "or as the judge on any appeal to a county court": subsection (3) of section eighty-seven.")

  —(The Lord Chancellor.)

  NEW FOREST BILL [H.L.]
  5.10 p.m.
  Order of the Day for the Third Reading read.
  THE EARL OF HUNTINGDON: My Lords, I beg to move that this Bill be read a Third Time.
  Moved, That the Bill be now read 3a—(The Earl of Huntingdon.)
  LORD MONTAGU OF BEAULIEU: My Lords, I intervene for a very short time to-day, but I can tot let this moment pass without saying that. I am sure we are all very pleased that this Bill has so far gone through satisfactorily. I am sure that all sides of the House will admit that the Bill has been greatly improved since the Second Reading. I would like to claim, most emphatically, that all those improvements have been due to the New Forest verderers and commoners. Ever since one and half years ago, when the Report came out, all attempts at improvement and any opposition which the New Forest organisations have put up have been called by some people traditional, outrageous and almost impertinent. I think everybody will agree that this Bill has been improved, and I am sure there has been no loss of face on the part of the Government. I can say that it has cost the New Forest £3,000 to do so. That seems unnecessarily costly. Much could have been agreed before this Bill came before us. That is all past, and I think the Forest as a whole can look forward to better and smoother administration in the future.
  5.12 p.m.
  LORD ROBINSON: My Lords, the few remarks I have to make upon the Bill will make no great demands upon the time and attention of your Lordships, but there are one or two points I would like to make. I desire to express my regret that I, the person who has had a great deal to do with this Bill from its inception until the present time, was not able to be in my place on the Second Reading and to support the noble Lord, Lord Lucas, who made such an excellent state-man on that occasion. Unfortunately, I was abroad, and an extension of my work on Government account made it impossible for me by two days to return in time for the debate. However, I did

  375
  attempt to make amends for that omission by going through the ordeal of appearing before the Select Committee.
  May I add my appreciation to that expressed by the noble Lord, Lord Montagu, of the masterful way in which the noble Marquess, Lord Reading, and his colleagues dealt with the Bill in Committee? I agree that it has been considerably amended and improved, and I imagine that that is a statement which not all promoters of Bills make about the work of a Committee.
  I would like to deal with one point which has been touched upon, indirectly perhaps, by the noble Lord, Lord Montagu, on the question of the preparation for this Bill which has run the people of the New Forest (to say nothing of the Forestry Commission) into considerable expenditure. It has been suggested to me—and I have read in the Press—that the preparation was inadequate. Now that is not the case. Right from the time when the Baker Committee reported, there were consultations, first, as to the Report itself, and secondly, as to what should go into the Bill. There were consultations with all the local interests on the draft clauses and on various subsidiary matters. When I went abroad in July, I felt happy in the position that the Bill would be unopposed. My consultations were continued by the noble Earl, Lord Radnor, and I had hoped that the Bill would in fact be unopposed. However, that was not to be, and whether for the reasons already stated or for other reasons—some of which might have been attributable, perhaps, to the Forestry Commission, although I am very modest on that point—the Bill has emerged a better Bill than might have been anticipated.
  I wish to make one final point, and that is that so far as lies within the power of the Forestry Commission and my own powers, so long as I may be associated with them, it will be our determination to try to make a success of it. I invite all those of like mind to co-operate with us to that end, and to try to end the interminable discussions which are held. The New Forest is rather like an abandoned field which has not been cultivated for many years. So soon as the soil is stirred up, up springs gorse in all directions; and there is no more
  376
  prickly subject to deal with than gorse, unless it be the New Forest itself.
  LORD LLEWELLIN: My Lords, perhaps I may add one word. There is a motto in the county from which I come, and in which the noble Earl recently resided, that, "Kissing is out of favour when the gorse is out of bloom." We hope that now the Bill has gone through the meticulous examination that it has received in this House, we shall see more amicable arrangements and relationships between the Forestry Commission and the verderers than perhaps have obtained in the past.
  5.18 p.m.
  THE EARL OF HUNTINGDON: My Lords, it is exceedingly gratifying to me, and to the Government generally, that this Bill, which started on a rather controversial plane, has, after passing through winds and storms, finally reached harbour, and that we have reconciled conflicting opinions which have been very strongly held. From the first, His Majesty's Government realised that this was a most difficult problem but one which had to be tackled very soon. I should like to say how much we were indebted to the compilers of the Baker Report, which was a most comprehensive Report on the New Forest. It enabled us to make a start on tackling this problem. As both Lord Montagu and Lord Robinson have pointed out, the House can congratulate themselves on having improved the Bill considerably since it reached us. Finally, I would like to emphasise that we always had in mind not only the preserving of the legitimate interests in the New Forest, but also the preservation of what is a great national heritage.
  On Question, Bill read 3a Amendments (privilege) made: Bill passed and sent to the Commons.

  GERMAN WAR CRIMES TRIALS
  5.20 p.m.
  THE LORD BISHOP OF CHICHESTER THE LORD BISHOP OF CHICHESTER rose to call attention to the present situation in Germany in relation to war crimes trials; and to move for Papers. The right reverend Prelate said: My Lords, the Motion which stands in my name raises issues of justice, humanity and political wisdom. It affects the

  377
  Germans, for the future of the new West German Republic, and indeed of Germany, depend in no small part on the question whether or not it develops in an atmosphere of confidence; and the war crimes trials are among the deepest troubles of the German people. But still more this Motion affects ourselves, and our reputation for justice and humanity; and on that ground in particular I plead against a further continuance of trials in any form, including the prosecution of the three German Generals, and I ask for a review of the sentences of all war criminals who have been already convicted. This subject has been much discussed in this House and elsewhere, and there is general agreement on the magnitude of the atrocities perpetrated by the instruments of Hitler's domination in the occupied countries, and on the legal rightness of punishing the main criminals. But it has been recognised from the start, first, that the important thing is to establish a proper idea of the international rule of law and to make examples, and, next, that the dealing with the criminals should be just and prompt.
  Now, my Lords, it is four years since the end of the war, and the War Crimes Commission was itself deliberately wound up in March, 1948; and, whatever we may think of the ultimate principle involved in the whole system, the longer it continues the more difficult it is to defend, and to carry the conscience of the enemy with us. We have to remember that nothing like it was instituted before on such a scale—and note the gravity and the vulnerability of the position of the President. No one could have presided over the International Military Tribunal in a more masterly or more fair manner than did Lord Oaksey; but the law imposed upon the Tribunal was a very rigid law, in some respects novel; and the making of a special Charter at all opens out all sorts of dangers in circumstances different from those which were under our control.
  There are three main points of criticism. First, the Charter deals only with the crimes of the vanquished; but it is very difficult for a defeated foe to appreciate the justice of punishing such crimes as the deportation of civilian populations in occupied territory, looting, murder of prisoners of war and devastation not justified by military necessity, when similar charges could be brought against
  378
  one or more of the Allies, but are not brought. The second point of criticism is that the Charter makes war of aggression a crime against peace. I can at least safely say, as an amateur, that this is much disputed among international lawyers; and the History, just published, of the United Nations War Crimes Commission gives a very interesting and full account of this disputability—not in morals but in international law. It points out that the majority of the Special Sub-Committee and of the Legal Committee of the War Crimes Commission regarded it as by far the most important issue of substantive law before taking the view that aggressive war, however reprehensible, did not represent a crime in international law, and that this position was not altered by the Kellogg Pact. The arguments at Nuremberg and Tokyo agreed with the Charter. All I would say is that the issue is highly controversial, and that Nuremberg made a new enactment.
  The third point of criticism concerns the rule about superior orders. Article 8 of the Nuremberg Charter runs thus:
  "The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him, from responsibility, but may be considered in mitigation of punishment."
  Law No. 10, under which all subsequent proceedings took place, defines that responsibility much more precisely. Article II of this Law says that:
  "… any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime … if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organisation or group connected with the commission of any such crime."
  I do not see how anyone, however remotely connected, could under these provisions be free from responsibility. The principle respondeat superior must be recognised as important in law—and all the the more when we remember that Germany was a military, and indeed a police, State, and that a man was likely to be shot if he disobeyed.
  Again, so far as war crimes proper are concerned, this Article in the Charter goes much further than the manuals of military law in force when the war broke out. I have studied some of the actual texts of

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  these; and I find that the German, the French, the Russian, the American and the British manuals all allow superior orders to be a valid defence on a charge of war crimes. The British Manual, up to April, 1944, was the plainest of all. Paragraph 443 of the British Manual of Military Law includes these words:
  "It is important however to note that members of the armed forces who commit such violations of the recognised rules of warfare as are ordered by their Government, or by their commander, are not war criminals and cannot therefore be punished by the enemy."
  This paragraph, and a similar paragraph in the American Manual, were drastically altered in April, 1944; but that was the rule from 1914 to 1944. It was the rule at the time of the Moscow Declaration on atrocities of October, 1943.
  All these points have a bearing on the general issues. But the last point of criticism deals with a principle of the greatest importance, concerning the responsibility of individuals in the case of all types of war crime—crimes against peace and against humanity, especially where administrators, diplomats and naval and military chiefs are concerned. The ultimate guilt lies with the makers of policy. It is the originators of the policy—men like Hitler, that man of diabolical power, and his most intimate political accomplices—on whom the gravest responsibility lies. I think we ought to have distinguished, far more radically than any Government have yet distinguished, between the primarily and principally guilty men and the rest.
  The last Nuremberg trial took place under three American judges, and ended in April. It is, I believe, their last trial. It tried diplomats and civil servants. Some of these were deeply involved in policy; others were diplomats and administrators only. Von Weizsacher, the Permanent Secretary of State in the Foreign Office, was the most important of the diplomats. Two judges sentenced him on certain counts to seven years' imprisonment. Judge Powers gave a dissenting judgment that he was not guilty at all, but the majority opinion includes this surprising statement:
  "While admitting that many things passed over his desk and received his initials of approval as to which he harbored mental reservations and objections, he states he remained in office for two reasons: first, that he might thereby continue to be at least a cohesive factor
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  in the underground opposition to Hitler by occupying an important listening post, maintaining members of the opposition in strategic positions, distributing information between opposition groups in the Wehrmacht, the various governmental departments, and in civil life; and, second, that he might be in a position to initiate or aid in attempts to negotiate peace. We believe him."
  That phrase "We believe him" is extremely important. We may wish that he and many others had refused to co-operate, but many diplomats, including Permanent Under-Secretaries of State in other Foreign Offices, have disapproved the policy of their Prime Minister or Foreign Secretary and have yet not resigned. I hope that there may be a radical revision of the majority verdict.
  The case is hardly less strong in connection with naval and military chiefs. I personally greatly regret the weakness and timidity of the Generals in failing to stand up against Hitler, both before and during the late war. Many of their actions or their failures to act merit strong moral condemnation. But we must beware lest the ultimate result of the policy adopted by the victors after the war has this result, as described by Brigadier-General J. H. Morgan, K.C., in his examination at Nuremberg. He says:
  "It may be that in the wars of the future, the belligerents, confronted with the possibility of losing them and, in that event, of being predestined, if vanquished, to be accused of 'aggression,' will wage them with all the greater fury and inhumanity, on the principle that it is as well to be hung for a sheep as a lamb."
  Field-Marshal Viscount Montgomery in Paris, at the Franco-British luncheon on July 8 of last year, said that the Nuremberg trials made the waging of unsuccessful war a crime, for the Generals of the defeated side would be tried and then hanged. I shall come to the two Field-Marshals and the one General in a moment, but with this background I urge that the time has come to bring all prosecutions to an end and grant a general amnesty.
  Let us just look at the figures. The History of the United Nations War Crimes Commission states that on March 31, 1948, there were 34,270 German individuals listed, of whom 22,409 were war criminals proper, 9,339 were suspects, and 2,522 were material witnesses. If we add 1,677 war criminals proper of other European nationalities, we arrive at a total of 23,086 war criminals proper listed

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  by the War Crimes Commission. Of these, on March 31, 1948, a year ago, 3,470 had been brought to trial in Europe and 2,857 had been convicted. Lord Wright, the Chairman of the War Crimes Commission, said in your Lordships' House on March 30, 1945, that if 10 per cent. of the war criminals were apprehended and dealt with, it would be more than satisfactory.
  Let us see who now await trial in the British zone. I know there are not many left. A great many have been tried and convicted and some have been acquitted; but there are three classes awaiting either trial or consideration for surrender. First—as I believe; I do not know now the exact figure because it varies—there are twelve Germans accused of crimes against humanity. There may be grave offenders among them. I do not know any of their names but, in view of the time that has elapsed, I think we should be prepared to risk now that some criminals escape punishment. The second category is the category of those two Field-Marshals and one General to whom so much attention has been directed. Field-Marshal Von Rundstedt and General Strauss are old and ill. Field-Marshal Von Manstein, younger, aged 61, is not so ill, although I understand his eyes are very bad. The answer to the question which the noble and learned Viscount on the Woolsack put last November: "Are these men fit to stand their trial?" may be "No" in the case of two, and "Yes" in the case of one. But, in my opinion, to allow any trials to proceed is to miss the main principle, which is one of justice at this date.
  The circumstances of their removal from Britain are well remembered. It is sufficient to say that the first formal notice that they would be tried by a military court was received on August 28, 1948, three days before the last day for deciding on further prosecutions at all, but no precise details were given as to charges or facts. Last November the noble and learned Viscount on the Woolsack spoke of the immense amount of work to be done and of papers in the United States. On January 1, so-called holding charges of war crimes were delivered to these three survivors. I have seen them. They consist of short sentences describing the type of crime without giving any details enabling the
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  defence to prepare its case. Up to the end of last week—I do not know what the position is to-day—no detailed statement of the case for the prosecution together with copies of documents had been handed to them. Supposing that indictment is handed to them next week, the defence must be given sufficient time to prepare their answers, and they should surely have access to the files of the military establishments which were under their command. The noble and learned Viscount in November hoped that the trial might be staged in March, though he gave no promises. It will be June or July, or even August, before the trial is likely to be staged now; and my question is: how shall we be able to justify to history the trial of any, in these circumstances, at this date?
  I do not dispute that the charges may be very grave. Nor do I dispute that their subordinate, Lieutenant-General Carl von Rogues, was sentenced by an American tribunal in October last to twenty years' imprisonment, and Lieutenant-General Otto Wothler, von Manstein's Chief of Staff, to seven years' imprisonment. We know that both von Manstein and von Rundstedt were asked in July, to give evidence in these cases. Important facts regarding them must surely have been known at that time. Important facts regarding them must surely have been known in March, 1948, when the Russians pressed for the delivery of these two Field-Marshals. It is the delay that is the crux of the matter. After all this time, at this distance from the Moscow Declaration, after four years of imprisonment, let them go. Incidentally I would like to ask whether they and other war criminals, after they have served their sentences or after they have been set free, are subjected to denazification in German Courts if they want their funds unlocked or for any other purpose.
  There is the third category—namely, the much larger class of alleged war criminals in British custody whose surrender is asked to the Governments of the countries in which the crimes were committed, in accordance with the Moscow Declaration. The method of deciding what is prima facie evidence justifying surrender has been greatly improved since the tribunals were established in 1947, but we can understand the terror of surrender to certain Eastern countries. I need only remark

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  that, according to the history of the War Crimes Commission, up to May, 1947, Yugoslavia had tried seventy-nine war criminals, sixty-three of whom were sentenced to death and none acquitted. A recent order has been given that no fresh applications for surrender will be entertained except on charges of murder. But murder charges are often an excuse for the interrogation of such persons about the politics of other people in the country to which they have been surrendered. A death sentence passed in absence on a person who was a boy of fifteen when the war broke out—and there are such cases—can hardly be regarded as adequate prima facie evidence. I have much correspondence on these matters and I am grateful to the Foreign Office for the trouble they have taken in them, and I know personally many cases of a most tragic character, many suicides in different camps, after the order of surrender has been given. They have chosen suicide rather than go to certain torture or death in particular countries. So I would urge an end to the surrenders.
  I have spoken of the Field-Marshals and the General; I have spoken of those charged with crimes against humanity and of those demanded for surrender. As I have no doubt the noble Lord will tell us in his reply, there are many signs of a general closing down of these war crimes trials, in the British zone as well as elsewhere. So in my plea for a general amnesty I ask for a reconsideration of the sentences already passed. In the American zone last year charges were made, to use the words of the American judge, Judge van Roden, "of atrocities committed by American investigators in the name of American justice at the United States Court in Dachau." The American Army Department accordingly appointed a Commission consisting of Judge Simpson, Judge van Roden and Colonel Lawrence, to investigate 139 confirmed but unexecuted death sentences, and their circumstances. The Commission's Report was published in January of this year. They found that no general charge of improper methods could be sustained but that in the Malmedy Case—and here I quote:
  "The propriety of many of the methods employed to secure statements from the
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  accused is highly questionable and, we conclude, cannot be condoned."
  They recommended the commutation of death sentences in altogether twenty-nine cases. They also recommended—and this is my point—that the Commander-in-Chief should establish as soon as practicable a permanent clemency programme for the consideration of the sentences of prisoners convicted in war crimes cases. So I would ask His Majesty's Government to establish a similar permanent clemency programme, with machinery for reconsideration of all sentences of persons convicted. It is only too well known that some prisoners who were sentenced earlier in a rather severe way would not to-day have been prosecuted.
  I have one final point before I sit down. I would ask His Majesty's Government to look at the conditions in which the major war criminals are imprisoned at Spandau Prison in the British sector of Berlin. I am not speaking of the merits or, rather, the demerits of the major war criminals, but I would call attention to this point. All these major war criminals at Spandau are completely isolated from the outside world and forbidden to read newspapers or to get any news. Their relatives are allowed to visit them for a quarter-of-an-hour every other month. Correspondence between prisoners and their families is so delayed and so heavily censored at times that it is often stopped for weeks, and so defaced as to be unintelligible. And the severity of the confinement is such that the chaplain is able to administer spiritual counsel only in the presence of a sentry. Probably the decision a year ago to terminate the Allied Control Council, which decision is now to be reversed, has made it impossible to secure consideration of individual cases.
  My Lords, I have put the general situation before you. I ask for an amnesty at this stage; no more prosecutions; no more surrenders to other Governments, and a reconsideration of all sentences passed. I do it, not because I am under any illusion as to the gravity of the crimes or as to the terrible part so many have played in bringing misery and suffering to millions, but because a time comes when an end ought to be put to the penal process. The noble and learned Lord, Lord Wright, in the course of some words upon the United Nations War Crimes Trials, stated:

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  "Once it is felt that the idea of an international rule of law, and its suitable endorsement, have been established, with the support of sufficient precedents, humanity is glad to be relieved of the nightmare of the past … The majority of the war criminals will find safety in their numbers. It is physically impossible to punish more than a fraction. All that can be done is to make examples."
  The rule of law has been demonstrated, many examples have been made, and exactly a year ago—on May 5, 1948—the noble and learned Viscount who sits on the Woolsack said in this House, in a debate on the United Nations Commission on Human Rights:
  "I look forward to the day when at long last these trials can come to an end. I think that the indefinite prolongation of the trials, although of course there may be exceptional cases where delay is necessary, is no longer performing a useful or a desirable task. If justice is spread out over too long a period it begins to look like vengeance, which is very different from justice."
  He closed with the remark that, in saying what he had said, he had the support of an overwhelming body of opinion among all Parties. With the proviso that after one more year it can no longer be necessary to maintain even one exception, these words of the noble and learned Viscount are truer than ever to-day, and I ask His Majesty's Government to act upon them. I beg to move for Papers.
  5.54 p.m.
  THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR FOREIGN AFFAIRS (LORD HENDERSON): My Lords, I would like, first of all, to thank the right reverend Prelate for his courtesy and readiness in responding to the requests of the Government which led to his Motion being postponed from the original date to that of the present debate. It has enabled certain matters to be dealt with this afternoon in more definite terms than might otherwise have been possible.
  I believe it will be for the convenience of your Lordships, and helpful to the course of the debate, if I make an immediate statement about the two Field Marshals and the General to whom the right reverend Prelate referred.
  I can announce to your Lordships' House that the Government have decided, in the light of medical evidence, that Field-Marshal von Rundstedt and Colonel-General Strauss are unfit to stand trial: proceedings against them are to be dropped and they are to be released.
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  The medical evidence regarding Field-Marshal von Manstein is that he is fit to stand trial, and accordingly he is to be tried. The noble and learned Viscount the Lord Chancellor will deal with this decision in full detail when he speaks later in the debate.
  But there is also the general policy of His Majesty's Government regarding war criminals, and I will deal with the present position and outline the Government's future policy in this matter. As noble Lords have been reminded, the acts listed and defined as crimes by Article 2 of Control Council Law No. 10 were crimes against peace, war crimes, crimes against humanity and membership of a group or organisation declared criminal by the International Military Tribunal at Nuremberg. As regards the first category, crimes against peace, no occasion has arisen to bring to trial persons accused of these crimes in the British Zone of Germany. Persons in the British Zone accused of war crimes—by which I mean crimes against the laws or customs of war—have been tried before military tribunals, and for the greater part the crimes alleged against them have been offences against British troops or troops of Commonwealth countries—chiefly prisoners of war. No trials have started since September 1, 1948, and none will be started in the future, apart from that of Field-Marshal von Manstein. All those started before that date have now finished, and the sentences have been put into execution.
  The third category is crimes against humanity. In the British Zone of Germany these crimes have fallen into two classes. Where the victims were German citizens or stateless persons, the accused are being tried in German courts. Where the victims were members of the United Nations, the accused are being tried in Control Commission Courts in the British Zone. Of the latter category, there are outstanding nine cases, affecting eighty-four persons. His Majesty's Government have decided that these and any future cases will without exception be left to the German Courts to try under the German penal code. So far as the trials of Germans accused of offences against Germans or Stateless persons are concerned, the question of the continuation or cessation of such trials is entirely one for the German

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  authorities, and it is no part of His Majesty's Government's policy to interfere with a responsibility which has been handed over to the Germans.
  The fourth category is membership of a group or organisation which has been declared criminal by the International Military Tribunal at Nuremberg. Organisations so declared were the Leadership Corps of the Nazi Party, the S.D., the Gestapo and the S.S. It was decided, in agreement with the German legal authorities in the British Zone of Germany, that the offence of being a member of one of these four organisations should be tried by special German tribunals. Accordingly, the cases of some 27,000 persons were investigated, and 203 are still under investigation. Over 20,000 of them have been brought to trial, of whom about 75 per cent. were found guilty and sentenced. There are 168 known cases awaiting trial, and 285 awaiting the hearing of appeal or retrial. Again, since the responsibility in this matter has always been with the Germans, the question of bringing to trial any persons accused of being members of such organisations who may be apprehended in the future is one which must be left to be settled by the German authorities.
  The right reverend Prelate referred to the surrender of Germans to other countries for trial there, as had been determined at Moscow in October, 1943. He urged that extradition should be brought to an end, even though the alleged offence was that of murder. There have been four successive stages in our extradition policy. The first was that of virtually allowing extradition merely on the application of the claimant country. Then, in the light of this early experience, it was decided by the United Nations Assembly in October, 1947, on British initiative, that requests for alleged war criminals should be supported with sufficient evidence to establish that a reasonable prima facie case existed as to identity and guilt. In order that such prima facie evidence might be the better examined by the Military Governor, and possibly rebutted by the accused, an extradition tribunal was established in the British Zone on February 28 last year. As I informed your Lordships on June 23 last, all applications for the surrender of alleged
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  war criminals were being examined in the first instance by that tribunal.
  About the same time, His Majesty's Government gave consideration to the question of the offences for which surrender of alleged war criminals should still be granted. The British Military Governor was ultimately authorised to announce, on June 1 last year, that he wished to receive by September 1 all applications for surrender, and with regard to applications made after that date, that he would grant only such as showed a clear prima facie case of murder. That was the third stage. The effect of this latter decision was that it removed from many German homes, more than three years after the war, the shadow of retribution for less grave offences than murder. But murder is an offence for which no statutory limitations exist, either in this country (as was pointed out by the noble and learned Viscount, Lord Simon, on November 2), or in Germany. The fourth stage has now been reached. His Majesty's Government intend to continue, in exceptional cases, to allow the extradition of persons to the countries where their crimes were committed. There must now be not only prima facie evidence of murder but also a satisfactory explanation why this application for extradition was not made before September 1, 1948.
  I should make it clear to noble Lords that there are a few applications for surrender of alleged war criminals which are still being examined in Germany where the offence alleged is not murder. These applications were made before September 1 and are, therefore, not covered by the Military Governor's announcement of June 1. Two factors have caused this delay. The first is that the claimant country had not originally supported its application with adequate evidence to convince a tribunal acting in the British principles of evidence, and has had to ask for an adjournment in order to produce such evidence, which very often exists. The second cause of delay has been that the accused, when confronted with the evidence against him, has asked for an adjournment in order to obtain rebutting evidence. Your Lordships will agree, I am sure, that it is only right that we should give the accused persons reasonable time if there are genuine grounds for believing that they have witnesses who can testify on their behalf.

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  There is one other surrender or extradition class—namely, traitors and collaborators of various countries occupied by the Germans. In 1945 we informed our Allies concerned that such persons would be regarded as traitors to the common cause, and the Military Governor was instructed to hand over to their Governments for trial such persons found in the British Zone of Germany. It has lately been decided however that after nearly four years from the end of the war, sufficient time has been granted to discover such persons as might be resident in the British Zone. The Military Governor, therefore, was authorised to announce in January that he would accept no more applications for the surrender of alleged traitors and collaborators after March 1, 1949.
  My Lords, I will summarise the future policy of His Majesty's Government by the following announcement:
  (1) His Majesty's Government do not intend to bring to trial in the British Zone of Germany any further persons accused of crimes against the laws and usages of war, apart from trials already begun, and that of Field-Marshal von Manstein.
  VISCOUNT SIMON: When will that trial begin?
  LORD HENDERSON: If the noble and learned Viscount will be good enough to wait until my noble and learned friend the Lord Chancellor deals with this matter, as I said at the beginning of my speech, he will be informed.
  VISCOUNT SIMON: I do not wish to disturb the noble Lord, but I think the noble and learned Viscount the Lord Chancellor is going to speak last. Presumably, the Foreign Office know the anticipated date.
  LORD HENDERSON: I still must request the noble Viscount to be good enough to await the speech of the noble and learned Viscount the Lord Chancellor.
  THE LORD CHANCELLOR: My Lords, I will gladly intervene at any time, if my noble friend does not mind. I have seen the indictment. It has had to be translated into English, and the last page or two are still in a draft form and written in ink. It is anticipated that the indictment
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  will be served within the next ten days, and thereafter, of course, we must give the accused such reasonable time as he wants to meet the matter. Subject to that, we shall be able to start the trial as soon after as may be.
  VISCOUNT SIMON: I am much obliged, and apologise to the noble Lord for having interrupted him.
  LORD HENDERSON: The announcement goes on:
  (2) His Majesty's Government have already handed over to the Germans the responsibility for trying persons accused (a) of crimes against humanity where the victims were Germans, or (b) of being members of organisations declared criminal by the International Military Tribunal.
  (3) In the case of crimes against humanity involving an Allied or United Nations victim, His Majesty's Government intend that all future cases shall be tried by German courts under the German penal code.
  (4) His Majesty's Government have long been anxious to reduce to a minimum the number of cases of extradition of war criminals. The Military Governor announced in June last that, save in certain specific cases, no further applications for extradition for war crimes would be accepted after September 1, 1948. In view of their obligations under the Moscow Declaration of 1943 and the Resolution of the General Assembly of the United Nations in 1947, and of the strong feeling still existing in France and certain other Allied countries which were occupied by the Germans, His Majesty's Government intend to continue in exceptional cases to allow the extradition of persons to the countries where their crimes were committed. This, in His Majesty's Government's view, means cases where there is prima facie evidence of murder, and where there is a satisfactory explanation why application for extradition was not made before September 1, 1948.
  (5) In regard to crimes against peace, it is intended to continue the present policy of bringing no trials before Control Commission Courts.
  (6) In the matter of extradition of traitors and collaborators, no further

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  applications for extradition are being accepted by the British authorities since March 1, 1949.
  My right honourable friend the Foreign Secretary has been very anxious, in the light of the recent Allied agreements in Washington about Germany, to reach agreement with the French and United States Governments on this vexed question of war crimes policy as well. The attitude of the American Government is similar to that of His Majesty's Government, and I understand that the statement which I have made expresses their position, as well as our own. The position of the French Government is different, and we appreciate the reasons for this. France and other countries of Western Europe, which were overrun and occupied for years by the Germans, have suffered more than the United States and the United Kingdom from these war crimes. We appreciate that the Governments of these countries should wish to retain the right to bring to trial persons who may yet be found to have been guilty of these serious offences. It is for this reason, as I have mentioned, that both His Majesty's Government and the United States Government propose to retain the right to hand over war criminals in exceptional cases. Subject to these exceptional cases both Governments intend to accept no further applications for extradition.
  It will thus be seen that His Majesty's Government have virtually brought to an end trials in British courts of persons accused of all forms of war crimes. The power of extradition exercised under international obligations to our Allies and the United Nations has been brought to an end, apart from exceptional cases. Lastly, my Lords, we have handed over to the German authorities responsibility to try their own nationals accused of crimes against humanity and of membership of criminal organisations.
  I will take only two or three more moments to deal with two points to which the right reverend Prelate particularly referred. He suggested that all sentences passed upon German war criminals should be reviewed, and reduced or cancelled. Before sentences of imprisonment are finally put into execution they are most carefully reviewed by the confirming officer. In addition, my right honourable
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  friend the Secretary of State for War has established a Review Board to consider all such sentences of imprisonment, and in due course, when all cases have been reviewed, the Board will make recommendations for the reduction of sentences where the circumstances make it seem proper. It is, of course, possible that such recommendations may result in the cancellation of the rest of the sentences where the term of imprisonment finally recommended coincides with the term already served. The only ground, however, for cancellation in any other sense would be wrongful conviction. All verdicts have already been exhaustively examined, and further review could be justified only by fresh evidence. In addition, it is probable that remission of sentences for good conduct will be allowed according to normal English practice. A final decision on this has not yet been taken.
  As regards Spandau Prison, a number of improvements were introduced in September last, following discussions on this subject. In particular, I would mention that increased rations have been authorised, and that visits at monthly intervals, and in some case of one hour's duration, are now permitted. The prisoners have always been permitted to write and receive one letter every month, and no increase in the number of letters which may be sent and received has been authorised. As a result of the censorship regulations there is now, however, a less strict scrutiny of the contents of letters. I should be glad to look into any detailed allegations of delays. As regards the provision of newspapers, I must point out that in the English prisons it is only during the final stages of a sentence that prisoners are allowed newspapers. I have had prepared a comparative table showing the original and present regulations for Spandau prison and those for English prisons, and if the right reverend Prelate wishes I shall be glad to send him a copy.
  There were a number of other points of which the right reverend Prelate gave me advance notice, and I have a good deal of information which I had hoped to be able to give him this afternoon. But, in order not to occupy any further time, I will, with the permission of the right reverend Prelate, communicate this to him by letter. Finally, may I say that I hope the statements of future policy,

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  and the information on specific points which I have given, will give some measure of assurance to the right reverend Prelate and to noble Lords generally?
  6.15 p.m.
  VISCOUNT SIMON: My Lords, at this hour I will not keep the House by any speech of mine for more than a very short time. I intend to be quite definite in what I say. We are all, I am sure, sincerely grateful to the noble Lord opposite for the detailed information he has given. I shall not deal with it at all; I think my noble friend Lord Bridgeman may have something to say about it a little later. I have only two or three respectful observations to make about the decision just announced: that of the three German Generals whose fate was discussed in this House some six months ago, two are now to be released, but the third is to be prosecuted. I apologise sincerely to my noble friend opposite if I at all incommoded him by interrupting and asking a question. It did not seem to me a very difficult question for him to answer, and it is useful to know the answer. I did not interrupt him further, but it may be important to know when the decision was reached by His Majesty's Government that two of these Generals who have been in custody for four years should be released.
  THE LORD CHANCELLOR: Would the noble and learned Viscount like me to answer that?
  VISCOUNT SIMON: Yes, I should.
  THE LORD CHANCELLOR: I went into this matter myself and got all the doctors over to see them on Monday afternoon last. I reported to my colleagues this morning, and the decision was taken this morning.
  VISCOUNT SIMON: I am glad, at least, that the House is informed as soon as the decision is reached. I must say I am sorry that the right reverend Prelate was prepared so often to postpone his Motion. Who knows whether, if he had said he felt it his duty to press his Motion earlier—a very important part of which was to determine whether these people were to be tried or released—some portion of this decision might not have been arrived at sooner? However, it was arrived at this morning and was based, I
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  gather, on inquiries which my noble and learned friend the Lord Chancellor has been good enough to make quite recently. There it is. I do not say a single word in defence of any wickedness that any of these three German Generals may have perpetrated, but I venture most respectfully to express the view which I hesitated to express six months ago, that if one were to consider this matter front the point of view of policy, it is very question able indeed whether it is the wise course to prosecute the third General now. Our sitting earlier in the day was interrupted by a most important Statement made by the Leader of the House, which was also made in another place, holding out prospects for improvement in the future of Germany. With the greatest respect to others who may know more about it, I do not see what object is going to be achieved by, for the first time, serving at some date in the future—I dare say in the near future—an indictment on this remaining General, after he has been in custody for four years.
  It cannot be that you hope to punish everybody who has been guilty of wickedness. It has been elementary, ever since this conception of war crime trials was set up (it was set up when I was Lord Chancellor, and carried through in the same spirit by my successor) that we were to establish what we thought to be justice and law in a limited number of cases, as an example. I recollect very well that President Roosevelt, when he assented to the announcement I had the duty of making in this House, stipulated in terms that the prosecutions must be limited to a few, for the sake of example. Are you going to add anything to the realisation of the world that wickedness must be punished, by saying: "Here is another General whom very shortly we hope to be able to charge with a war crime"? In due course, when he is given proper opportunity for his defence—which, of course, he must be given—he will be tried, and if he is found guilty he will then be punished.
  What are you going to gain by that? We are not here dealing with the administration of our own domestic criminal law where, quite rightly, everybody is prosecuted whom the authorities find on sufficient grounds ought to be made the subject of a criminal proceeding. That is not the need of these international tribunals at all. They exist for the purpose

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  of establishing a principle which, whatever the right reverend Prelate may think, I regard as a justified and established principle—that, on proper proof, it is right to make an example of terrible wickedness committed in war in breach of every conceivable decent standard of conduct. I cannot myself see what advantage is to be gained by this additional case, whatever be the gravity of it, and I feel that there are certain disadvantages which a wise and far-sighted policy might feel weighed heavily upon it.
  I must refer to one or two of the introductory remarks of the right reverend Prelate, because although I warmly agree with his concluding appeal, I found some of his early observations rather difficult to accept. If I understood him rightly, he attacked what I may call the Charter of Nuremberg. I must say, for my part—and here I am sure the Lord Chancellor agrees with me—that I believe the principles laid down in that Charter were in themselves perfectly just and were in accordance with international law. I am sorry that anybody, least of all a member of this House, speaking from the Bishops' Bench, should throw doubt upon that.
  Then, if I understood him correctly, the right reverend Prelate told us that the view widely held, and which he did not challenge, was that in all the circumstances a soldier was to be excused because he was obeying superior orders. I would venture respectfully to remind the House that not only is that not the law, but it is recognised in Germany not to be the law. There are no doubt cases in which a serving soldier, ordered by his Commander to do a particular thing, like firing a volley, may well suppose that he is merely discharging his duty. But the British Manual of Military Law has never laid down that a man who knows that he is committing a monstrous wickedness is to be excused by saying, "Well, I was ordered to do it." It surprises me very much that the right reverend Prelate should even for a moment entertain the idea that, if a soldier were ordered by his officer to go and rape a woman, he would be guilty of no sort of crime because he had just received superior orders to do it.
  THE LORD BISHOP OF CHICHESTER: I do not want to be misunderstood. I do not at all take the view which the noble and learned Viscount attributes to
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  me. I was quoting—and I did no more than quote—the British Manual of Military Law. I did not embroider it in any way.
  VISCOUNT SIMON: Let us deal with the British Manual of Military Law. In point of fact, there never was, so far as I know, in the British Manual of Military Law in earlier days any statement such as the right reverend Prelate quoted. It is true that there was an insertion which was derived from an edition of the writings of a distinguished international lawyer. Mr. Oppenheim. Shortly afterwards he published his next edition, and very properly, realising that he had made a mistake, he corrected the statement. I have the book before me now. Perhaps the right reverend Prelate has the same book. If he would turn to page 455 he will find a useful little note, and he will see whether the German view is that a soldier is excused acts because he obeys a manifestly wicked order. After the war of 1914–18 there were certain trials in Leipzig for war crimes. Rightly or wrongly, the Government of that time thought that they could entrust the trial of certain German war criminals to German courts. My noble friend Lord Cecil will remember it well. One of the most important of the Leipzig trials had to do with the shocking conduct of German sailors who, under orders, shot unarmed individuals shipwrecked from a vessel which had been torpedoed by the Germans.
  If the right reverend Prelate would remind himself, he will see that this is what is stated in Mr. Oppenheim's own book, and it is perfectly well known to anybody who has studied the subject. He says:
  "The German Supreme Court held in 'the Llandovery Castle' case, a case decided in the course of the so-called Leipzig trials, that the defence of superior orders would afford no justification where the act was manifestly and indisputably contrary to international laws as, for instance, in the case of killing of unarmed enemies or of shipwrecked persons who have taken refuge in lifeboats."
  I do not wish to delay the House, but it would be a pity if we left on our record a suggestion from any quarter of the House that that is not a proper statement of the law.
  THE LORD BISHOP OF CHICHESTER: My Lords, I am extremely sorry to intervene again, but I have here the official History of the United

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  Nations War Crimes Commission and the Development of the Laws of War. I would ask the noble and learned Viscount to look at page 281, where it says:
  "At the outbreak of the First World War, in 1914, parts of the British Military Manual were revised and amplified. In Chapter XIV, relating to the Laws and Usages of War on Land, the principle was declared that military personnel acting upon superior orders were not penally liable for offences committed under such orders, and that liability lay only on the superior. It was couched in the following terms: 'Members of the armed forces who commit such violations of the recognised rules of warfare as are ordered by their Government, or their Commander are not war criminals and cannot therefore be punished by the enemy. He may punish the officials or commanders responsible for such orders if they fall into his hands, but otherwise he may only resort to other means of obtaining redress.…'"
  Then it says:
  "During the Second World War opinion developed strongly against these rules, and criticism was repeatedly expressed in the international bodies. … English writers, such as Professor Lauterpacht, observed that the British Military Manual had no statutory force and could, therefore, be amended in the face of new developments."
  The only point I made was that what the Charter says in the words in which it states the rule, differs in a rather important respect from the British Manual of Military Law. I have no wish whatever to say that atrocities and brutalities, committed with the knowledge that they are atrocities and brutalities, must go unpunished by whomsoever they are committed.
  VISCOUNT SIMON: I thought that must be the right reverend Prelate's conclusion. It is perfectly true, as I thought I said, that there had been inserted in our Manual of Military Law, the proposition to which he has just referred, but it is also true—I have the passage before me—that the author of that view, realising it was wrong, said so in his next edition. As a matter of fact, the Manual of Military Law was corrected accordingly.
  There may well be cases where a man, acting under orders, has no reason to doubt that the orders are lawful orders. Indeed, the Manual of Military Law used to talk about "lawful orders." But I do not think it has ever been laid down in terms by any reputable authority—and I am sure the right reverend Prelate would not think so—that, supposing the action
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  be of a monstrous character which nobody can possibly regard as lawful but must regard as wicked and abominable, it is a complete defence to say: "That makes no difference: I am only an automaton; I do as I am told." The true view is that while it is a very material circumstance that the man has been under military orders, and it is a great reason for consideration and mitigation, it would be a shocking thing if it were suggested at this time of day, in any quarter, that because a man is under military orders he is at liberty to do just whatever he sees fit.
  I hope the right reverend Prelate will not think I am wishing to saddle him personally with any reproach; but it does seem to me that if any noble Lord is going to support an issue in your Lordships' House it is important that he should come out quite definitely. I myself think that the Charter of Nuremberg was a well-drawn Charter. It has already been defended by one noble Lord. But on one point I feel the gravest doubt. I have no illusion as to the gravity of some of these war crimes. It may be that the noble and learned Viscount the Lord Chancellor is going to reveal, as he did before, some shocking incident; but the question remains, as a matter of political wisdom four years after the war: Are you doing any good by pursuing these prosecutions? The Americans have washed their hands of them; they will have nothing to do with them. We ourselves have wound up our organisation, and people have had to be recalled for the present trials. Even now the indictment has not been served, and it is not for me to estimate how long it may be before the matter is finished.
  I am sorry to express what may seem to be a dissenting note. I restrained myself last November, though my own view then was that it would be better to abandon these trials. I do not find it consistent with my duty, to say to-day that I think it is a wise decision to proceed with these prosecutions.
  6.33 p.m
  LORD HANKEY: My Lords, I came here to-day to support to the full the Motion of the right reverend Prelate. When the statement was made from the Government Bench, I hoped at first that it was going to give the right reverend Prelate considerable satisfaction, but I am sorry to say I am very disappointed

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  now. Apart from the trial of Von Man-stein, there seem to be trials still going on all over Germany. I entirely agree with what my noble and learned friend Lord Simon has just said, that these trials ought to be stopped and that His Majesty's Government ought to set the example in the matter. Still, I congratulate the Government on having made some advance in that direction, and I hope that when I raise the question of Japanese trials a fortnight hence I shall find a greater advance.
  To appreciate the position, I think we have to review it rather broadly. These trials began with the Nuremberg trials; they are really all offshoots in one way or another. Nuremberg was born in a bad year, 1943; a policy of virulent threats was adopted in 1943 and has bedevilled the world ever since. That policy, in which, so far as I am aware, no Commander-in-Chief or Chief of Staff had any concern, was inaugurated by the announcement by President Roosevelt and Mr. Churchill, but not by Mr. Stalin, who was not present, of "unconditional surrender" at Casa Blanca on January 20, 1943. That was a great gift to Goebbels' propaganda, rallied the disillusioned German people to Hitler, strengthened the resistance of the enemy and greatly prolonged the war by making it impossible for the Allies to offer peace on less humiliating terms in either the West or the Far East. Then, on November 1, nine months later, came the announcement from Moscow of the intention of the Allies to punish the Nazi leaders. That threat, like all threats, stimulated retaliation and again postponed peace sine die, because it threatened everybody who could make peace; they were told that they were all to be killed or imprisoned. Even today we have no German Treaty. Moreover, as a result of the bitterness engendered, the war became a fight to a finish and, through no fault of the Allied Service chiefs, degenerated into a sadistic orgy of competitive frightfulness—V1 and V2 weapons, U-boat warfare and frantic war crimes on one side, and, on the other, unlimited bombing, culminating in the crowning catastrophe of the atomic bomb.
  I think history will attribute to this ganglion of desperate policies the following consequences: first, the prolongation
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  of the war to a point where we were bled white while Russia was extending her grip over all Eastern Europe and accomplishing Stalin's published aims; secondly, the failure to make peace with Germany for four years or more after the end of hostilities; thirdly, the replacement of German tyranny by Russian despotism, the estrangement from the Western Allies of Germany and Russia, the disappearance of the historic frontiers between Eastern and Western Europe and of the balance of power for their defence; and fourthly, a legacy of bitterness, confusion and hatred which stifled the United Nations from its birth and still continues.
  So much for the wider policy and its results, in which the trials of war criminals had, and unfortunately still have, their place. Of the trials themselves it can already be said that, besides starting new trials all over Germany, they have been imitated all over Europe, resulting in the judicial persecution and often death of countless and often innocent people—kings, statesmen, cardinals, politicians, generals, diplomats and I know not whom—and that again will continue until the German and Japanese trials are brought to an end. Secondly, it can be said that a deplorable precedent has been set for future wars. At both Nuremberg and Tokio, as the right reverend Prelate has said, the victors tried and judged the vanquished. The tribunals were established by and derived their powers from the victors alone, for the trial of the vanquished and of no one else. It was by the victors alone that the Charter and the Code of International Law were drawn up. There was something cynical and revolting in the spectacle of British, French and American judges sitting on the Bench with colleagues who, however impeccable as individuals, represented a country which before, during and since the trials has perpetrated half the political crimes in the calendar. And in spite of the specious arguments on page 38 of the Nuremberg Judgment, I do not see how anyone can deny that under a cloak of justice these trials were just the old, old story—one law for the victors and another for the vanquished. Vae victis!
  To grasp the political danger of the precedent, let us imagine that the countries of Eastern Europe have

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  over-run many of the countries of Europe. Can you imagine that they would not follow the Nuremberg precedent faithfully, writing their own charter, defining and creating their own "international" laws and establishing their own tribunals? The employment of the atomic bomb would be decreed as a breach of the laws of war—which is an arguable proposition—and everyone they could lay hands on who had ever been concerned in its use in any war would be tried and hanged. The Atlantic Pact has already been denounced by Russia and her satellites as a breach of international law, and those who have aided and abetted it and been concerned in its military planning would be advised not to fall into Russian hands. From Sir Alexander Cadogan's remarks at the United Nations a day or two ago, we know how their trials are conducted:
  "The official view of the administration of justice in these countries is that it should not be impartial, but must serve the ends of the régime in power. One of the few certain things we know about the trial of Cardinal Mindszenty is that the judge was not independent because he was told what verdict he was expected to give, and knew that his job depended upon his giving it."
  If we were to get some of the judges from Nuremberg in a corner and ask them in private what was the attitude of one of their colleagues, I wonder what they would say.
  Another dangerous precedent created by this trial is in connection with defensive planning. There are, or will be, defensive planners with the United Nations, regional organisations like the Atlantic Pact, or individual nations. Upon the discipline and loyalty of the planners, whether military or civilian, to the supreme control of their respective Governments the whole safety of the nation or of any group of nations will depend. But those primitive virtues of discipline and loyalty seem to have been forgotten by the pedants who devised Article 8 of the Charter, which has already been mentioned. That lays down that:
  "… the fact that a defendant acted pursuant to an order of his Government or of a superior shall not free him from responsibility."
  That confronts the individual planner with an impossible dilemma between duty and conscience. Shall be obey the order, or shall be seek the shelter of some international law—as it will be interpreted, not necessarily by his own fellow countrymen, not necessarily by the
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  Nuremberg Charter (which we are told was so good), but by the victor in the war, who may be his enemy, with a totally different ethical standard? It is just placing a premium on cowardice and escapism in the proper carrying out of orders.
  Contrary to general belief, the history on which the Nuremberg judgments and findings were based is not accurate. I have made a careful comparison between the invasion of Norway, as described in the judgments, and the description of it in Mr. Churchill's memoirs The Gathering Storm. Of course, those memoirs were not published at the Lime, but that evidence was available if the tribunal had thought it worth while to get it, but their judgment was based entirely upon the evidence that they obtained from the Germans. They did not and out what was going on in the Allied countries. At this late hour, I am not going to burden your Lordships with the elaborate survey that I have made on that subject, but I will just mention one or two points. Had the judges called for that evidence, they would have discovered that the planning of aggression first began in this country. It was on September 29, 1939., four days before Admiral Raedar's memorandum, which is always quoted as being the first step in German planning, that Mr. Churchill called for plans here. That was the start of the plans for what was eventually carried out, namely, the mining of the Norwegian leads which Mr. Churchill described a little later on as ranking as "a major operation of war." He then discussed the extreme probability that, if it was carried out, Germany would spread the war to Norway and Sweden, which he thought would be to our advantage; and towards the end he put in a plea for anticipating them, even though it meant a violation of neutrality. Those are all just the things that the Germans were doing and thinking about, mutatis mutandis.
  Then the judges would have had their memory recalled to the "Altmark" incident, which was actually the first breach of international law, apart from the sinkings of neutral ships. The Norwegians protested violently against this as a breach of international law and, as Mr. Churchill comments, it no doubt gave the Germans "a spur to action." All those things were overlooked by the

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  judges because they took no evidence from the other side. In my opinion, the result is that their summing-up is quite incorrect—namely, that "in the light of all the available evidence, it is impossible to accept the contention that the invasions of Denmark and Norway were defensive and in the opinion of the tribunal they were acts of aggressive war." The very important operation of the mining of the Norwegian leads actually took place on April 8 and was criticised by the Norwegians. German retaliation was just coming but, all the same, they protested against it, and the Germans came in the next day—April 9. So both in the planning and in the execution we were beforehand. I think that was a very good thing. I think it showed great foresight on Mr. Churchill's part. But we did actually begin the planning and we actually committed the first aggression, though by a very short head. If the judges had obtained that evidence, the judgments would have been different.
  But, if the tribunal's account of the Norway campaign is wrong history, that is equally true of the even more important introductory review of the rise of Hitler and his gang with which the Judgment opens for the purpose of showing the background of the aggressive war and the war crimes charged in the indictment. That is a serious statement to make. It is true that there are very few errors of commission. It is a perfectly correct account, if you look through it. But the sins of omission—they really make one's hair stand on end! Here is a great historical account of the fall of a nation to an abominable system and leader, and there is hardly a single word on what was the provocation. It is true that they do just mention one point—namely, Hitler's aim of removing "the disgrace of Versailles." That appealed naturally to the German people, as have all appeals for freedom. But not a word appears of such provocations as the occupation of the Ruhr in 1923 which, rightly or wrongly, was denounced at the time by the leaders of every British Party and in every Dominion as a flagrant aggression. There was not one word of the use of black troops in the Rhineland garrison, which was very irritating to the Germans; nor of the attempts to detach
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  Bavaria and Saxony from Germany; nor of the endless pinpricks over reparations up to 1932.
  There is another great cause of the Second Great War which is not even mentioned—namely, the failure of the Allies who had both the right under the Treaty and the force, though they lacked the will, to stop German rearmament. Mr. Churchill mentions that point at the very beginning of The Gathering Storm in this caption:
  "Theme of the volume: How the English-speaking peoples through their unwisdom, carelessness and good nature, allowed the wicked to rearm."
  It was not only the English people; it was others too. But by slackness and by such things as the British Ten-years' rule, they did allow the Germans to rearm. The Allies were gradually reduced to such a state of moral and physical disarmament that in the 'thirties they had neither the will nor the power to halt the Germans. Those are some of the major causes of the war. It will be said, in the 'twenties the Allies goaded the Germans beyond endurance, and in the 'thirties they did not stop them as they ought to have done; the feeble protests that were made were almost a condoning of German aggression.
  I am always told that all the convicted persons were judged and convicted of war crimes, as well as of political crimes, and that the sentences imposed were not affected by the judgments on crimes against peace. That is a most unsatisfactory answer, because to my mind it is clear that before history a cardinal error has been committed in indicting a whole nation of political crimes, without including any extenuating circumstances such as those I have mentioned. I do not confess to any great affection for the Germans but I admit that I am very jealous of our reputation for fairness, and I am horrified at the idea of future Anglo-German relations being poisoned by false history, which will also give the Germans an excuse for making martyrs of Hitler and his gang. These defects were due to two causes. One was that the tribunal never took any evidence of what was being done by other countries; and secondly, that at the time they had no expert assessors with them.
  Summing up, I cannot see that we gained anything by the Nuremberg trials, and I shall seek to show in a

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  fortnight's time that we have gained nothing from the Tokyo trials. Therefore, I most cordially support the right reverend Bishop's proposals. The most urgent thing is to bring all these trials to an end, and if other nations will not agree, to decline any further British co-operation. We must not be too mealymouthed about it. It is four years after the war. As I said on February 18, 1948, from this Box:
  "As a first step, trials and prosecutions of war criminals should be dropped and there should be a universal amnesty. 'Vengeance is mine, I will repay,' saith the Lord. Let us leave it at that. It is not by fear and threats that the world can be won to decency and kindness, but by charity."
  6.56 p.m.
  THE EARL OF CORK AND ORRERY: My Lords, I rise to support the Motion, but so much that I had hoped to say has been better said that I shall cut short my remarks, which, consequently, may appear rather disjointed. Before I come to the first part, I must say that I think the noble Viscount was very severe on the Bishop. I have in my hand an extract, which I took two hours ago, from the British military manual, and what was said is perfectly correct. That was the law until April, 1944, and—
  VISCOUNT SIMON: Perhaps my noble and gallant friend would excuse me. I did speak with a greater tone of censure than I ought to have done, and I am sorry. I was very anxious to put as clearly as I could, that it really is not the case, and I do not think it has ever been the case, that because a man is given orders therefore he is completely innocent whatever he does. I was very anxious that that should be maintained. I apologise to the right reverend Prelate. I think I did speak with more harshness than I should have done.
  THE EARL OF CORK AND ORRERY: My Lords, my principal object in rising is to ask that the British rule may be re-established, except, of course, in the sort of crimes that have been mentioned—namely, crimes against humanity. But there is a borderline, and it is extremely difficult to decide whether a crime is a crime against humanity or is a war crime. I am not going to speak about the higher grades, because that point has been ably dealt with, but I am going to take your Lordships a little lower
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  down the scale. We have heard about the planners and so on, and I want to recall to your Lordships that some months ago I spoke on behalf of some German officers who were going to be tried for firing on Greek seamen from a steamer they had sunk. That trial was held, and the following evidence came out.
  The captain, who was a lieutenant-commander of some standing, had told his officers that he was going to destroy all traces that might, give away to an Allied air patrol the presence of his submarine; and with teat object he ordered them to fire on the wreckage. He knew and accepted the fact that seamen survivors of the ship were clinging to the wreckage, but he said that he considered the carrying out of his mission, combined with the safety of the ship he commanded and the crew he commanded, took first place. I feel myself that it may have been a severe view to take, but that it is a view which every officer in such a position ought to take. His first consideration must be to achieve the objective which he has been set, and the second to do that with the minimum of risk to his ship and the men under his command. That principle will hold good for any Service. At the time when he expressed this view and stated that he was going to do this, the officer had on the bridge with him a sub-lieutenant—a boy only twenty or twenty-one years of age. This young officer was making his first voyage in a ship on active service. It was his first experience of the excitement of firing against an enemy. He was ordered by the captain, who, as I have said, was a man of long experience, to open fire. He complied, and he took other measures—though these were not with the object of firing on the wreckage. We have killed that boy for doing that. I say that he was doing his duty. I believe that in the view which I take on this matter I shall have the support of a great number of officers in all our Services. The boy received an order, and he had no time to consider or discuss whether or not what he was ordered to do was legal.
  May I, in this connection, read your Lordships an extract from the Manual of Military Law:
  "… undoubtedly a court confronted with the plea of superior orders is bound to take into consideration the fact that obedience to military orders is the duty of every member of armed forces, and that the latter cannot

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  in conditions of war discipline be expected to weigh scrupulously the legal merits of the orders received."
  I thought to myself, when I saw the noble and learned Viscount opposite holding up that great tome, that I have never seen that book on any ship or submarine, in any camp or anywhere else connected with the Forces. That Manual of Military Law was their guide at the time, and it is made in a convenient size for carrying in an officer's pocket.
  So far, in what I have told your Lordships about this episode of the submarine I have not come to the worst part of it. I have stated that the captain was shot, and the boy was also killed. The court found the boy guilty, though I think that many people may feel there was a great deal to be said for him. However, on the principle of divided responsibility the sub-lieutenant was tried and shot—I should call it something more than an execution; I should call it something else altogether. But to continue with the story of the episode. Among the group on the bridge of the submarine was a leading seaman—he would correspond in rank to a lance-corporal in the Army. He was only nineteen years of age, and he, too, was ordered to fire on the wreckage. In obedience to the order, he fired two short bursts; that was all he did. What did we do to that boy in justice? We gave him fifteen years penal servitude.
  I think that this and similar cases ought certainly to be revised. This watering down of the responsibility for the giving of an order, and holding responsible those who carry it out, seems to me to weaken the whole chain of mutual confidence which binds together all in a Service. Everyone should be able to trust his superior and to carry out without question an order from him. And the superior ought to be able to depend on implicit obedience. If the superior gives a wrong or inhuman order, well, you can shoot him afterwards—I am not defending inhumanity. But there are cases, of course, in which it is very hard to judge.
  I have in mind such a case as that of a military patrol which was told to carry out a certain operation and, in doing so, over-ran a place where there was a number of enemy troops. This episode, of which I am thinking, took place in Burma. The patrol could not take the
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  twenty or thirty Japs whom they encountered with them, and still less could they leave them where they were, for they would have given away the presence of the patrol in the area and that would have had disastrous results. In this instance, the Japs were taken by surprise, and without weapons. Doubtless, if they had not been, they could not have been taken at all. In the circumstances, the only order which the officer in command felt that he could rightly give was to eliminate them by shooting. And that was done. In my opinion that was correct, but you could have tried that officer and found him guilty if he had tortured or flogged the prisoners to death. There are a number of eminent legal authorities in this House now, and I should like to be told whether that officer was or was not guilty of a war crime, or of an offence against humanity, in having those twenty-odd prisoners, who were unarmed and taken by surprise, executed.
  I say that this easing of the strict rule of the full responsibility for an order by one party and of unquestioning obedience by the other does weaken the bond between superiors and inferiors in a Service. To my mind that is a very serious thing. I may be told that it will not make any real difference. Superficially, it might appear that it would not. But I think that what may well happen is that just at the time when you want the bond to be at its strongest—as, for example, when it appears probable that you may meet with defeat and the utmost effort on the part of everyone is called for—the juniors will lose confidence; when they get an order they may say: "I do not think I will do this, because if we are captured I shall have to answer for it." Thoughts and impulses of that kind, when the circumstances are very difficult, can spread very rapidly. When such sentiments once begin to be expressed among the members of an organised body in the Service, general mistrust follows, and defeat is not far off.
  I urge His Majesty's Government that when these matters are reconsidered, we should go back to our old-fashioned British law and so do all we can to reestablish implicit trust between all ranks throughout all our Fighting Services. If we do not do so, we may find that just at the time when we are placing most dependence upon it, discipline will break;

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  there may be a disintegration of forces and men may seek to ensure their own safety, with results which can readily be imagined.
  7.8 p.m.
  LORD AILWYN: My Lords, I desire in the briefest manner possible to say something about the case of the one remaining Field-Marshal—Field-Marshal von Manstein. I am glad I have not to speak on behalf of all three of the officers in question. To me this seems to be one of the most difficult anti intractable problems that have ever been debated in your Lordships' House. I think it goes to the very roots of the meaning and definition of justice. This question of what is justice, considered in the particular circumstances with which we are concerned this evening with regard to this Field-Marshal, is only a shade less perplexing to me than the question, "What is Truth?" which w as posed some 2,000 years ago, and is still being asked by the human race to-day. As I see it, there is no political issue here. In that, with the greatest humility, I differ from the noble and learned Viscount opposite, who spoke of the political wisdom of this issue.
  To me this is a question which each one of us has to decide according to the dictates of his conscience. For my part, I have given this matter all the thought of which I am capable. I listened to every word of the debate in your Lordships' House in November last, and I read and re-read the reports of the speeches made that day. Those of your Lordships who listened to the grave and solemn pronouncement of the Lord Chancellor on that occasion will not easily forget that moment in his very powerful speech when he raised a corner of the curtain and revealed something of the horror that Jay behind. In common with the great majority of your Lordships on that day, I, personally, found the case which he made for going forward with this trial to be unanswerable. That was six months ago. This Field-Marshal is still languishing in prison, as were the others, I understand, until this morning.
  No projected date has yet been given for this trial. No doubt there are good and sufficient reasons for all this protracted delay and, not knowing the circumstances, I shall certainly make no criticisms of this matter, but I have come to the definite opinion that what would
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  probably have been justice a year ago, what might possibly have been justice six months ago, can no longer be justice to-day, in view of the inordinate delay in bringing this man to trial. I believe that a decision to pursue this trial in existing circumstances would be repugnant to the feelings of all thinking men and women in this country and in all other Christian countries. I believe that the fair name of British justice might be damaged irretrievably. I have the greatest possible sympathy with the noble and learned Viscount the Lord Chancellor in the extremely difficult task with which he has been, and still is, faced. I am one of those who believe that it is a task to which this country should never have been entrusted. I should have supposed it was clearly an American responsibility. The evidence in support of this contention appears to me to be overwhelming.
  I should like to say a further word about treaty obligations. I venture to suggest to your Lordships that the Soviet Government have placed themselves beyond the pale of association in the comity of nations and that their behaviour justifies a repudiation of whatever obligations we may have entered into at a time when we had no reason for believing that they were going to behave in the utterly abominable way in which they have behaved. We know to what grim fate we should be handing over this man, if we did hand him over—a fate even worse than that to which he and the other Generals were going to condemn our men in handing them over to the Gestapo. I venture to suggest that the Government would do well to heed what I believe is the intensity of feeling among all shades of opinion over this projected trial. I believe it would be wrong and not in accordance with Christian principles or the British code of justice if the Government were to decide to proceed with this trial. Equally I believe, for the reasons I have given, that it would be a hideous crime to hand this man over to the Russians. Therefore I plead with the Government to revise their present policy and announce the abandonment of this trial.
  7.13 p.m.
  VISCOUNT BRIDGEMAN: My Lords, I have reached the conclusion that the time has come, and had come long since,

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  to bring an end to the war crimes trials. In reaching that conclusion I travelled a rather different road from that travelled by the noble Prelate who moved this Motion and from that travelled by some of my noble friends. At the time when the war crimes trials were being planned, in 1945, I had a good opportunity of judging the question, because I was officially concerned with some of the administrative problems which surrounded the trials. I was not concerned with legal problems, but with administrative problems, but that gave me an opportunity of seeing something of the quality of the evidence likely to be offered when these trials took place. I formed the view then, and I still hold the view now, that in essence these trials were just and right. I formed that view having some knowledge of the Manual of Military Law and the doctrine of what is a lawful order and what is not.
  As the same time I formed another view, from which again I have had no reason to depart—the view that whereas it was right to bring war criminals to swift justice (and I think I am right in saying that the words "swift justice" are used in the Moscow Declaration), there would come a time when, if these trials were still continued, the effect would not be that which was hoped for but one which would be harmful to what was bound to be the policy of the victorious allies—namely, to build up a new and sounder Germany. I think that is the state of affairs to which we have come. These trials have been going on far too long, and therefore we are running a risk of seeing the efforts which we are bound to make to put Germany on her feet, and which have become all the more necessary since the welcome news given to the House this afternoon, interfered with. That was why all my noble friends and certainly I myself were very glad to hear what the noble Lord, Lord Henderson, said to us a few moments ago. His statement meant that no further war crimes trials would take place under British tribunals, and that a similar state of affairs would exist in the American zone.
  Only three classes of trials remain to be dealt with. The first are trials which the Germans see fit to bring. If the Germans see fit to promote trials against their own nationals, no one can claim that it interferes with the rehabilitation of Germany.
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  The second class are those trials which the French may see fit to bring. Here one would hope that by this time the French would have brought to book the majority of those who should be brought to book. Although one sympathises very much with the French and realises that they are in a different position from the countries which were not invaded, nevertheless one hopes that it will not be long before they, too, can close this chapter. In practice the position is one in which we are left to consider only the question of the trial of von Manstein. Unfortunately, this debate has been so arranged that the question of this trial has had to wait until the end. We are all waiting to hear what the learned and noble Viscount who sits on the Woolsack will tell us in giving the reasons why this trial should go forward. Until he does, it is not for me to say whether it is right or wrong. All I can say is—and here I am much in agreement with my noble friend Lord Ailwyn—that every day the trial is delayed makes the arguments against the trial stronger and the arguments for it weaker. If we are to be offered good and convincing reasons why it is still right to try von Manstein, then I sincerely hope that we shall be given a better assurance than we were given last year and that this trial will really be conducted in such a way as to make a belated attempt to live up to the ideal of swift justice laid down in the Moscow Declaration.
  7.20 p.m.
  THE LORD CHANCELLOR: My Lords, this debate was to call attention to the present situation in Germany in relation to war crimes trials. Though your Lordships, perhaps fortunately, are not bound by strict rules of order, I doubt whether the irrelevancies relating to this matter have ever, certainly not in my time, reached the heights, or perhaps I should say depths, which they have reached to-day. I had a chance of talking to your Lordships about this matter in November last. It is not my intention today to go over the ground I then covered, or to discuss in any way the details of this case, because I think that to do so would be unfair. But I want to say this at the outset. For the last six months I have found this whole matter one that has been a source of great worry to me. I do not withdraw a single word I used which the right reverend Prelate quoted

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  earlier. But when I hear a discussion raised as to the responsibility for superior orders, and that sort of thing, I wonder what on earth that has to do with the case.
  Incidentally, may I take this opportunity of asserting what the law is, and always has been? It is that acting on superior orders is no defence to a charge for committing a crime. Any lawyer will learn that in his first year of study. There can be no doubt about it at all. But it would be a most relevant factor in determining punishment, and a most relevant factor for me to consider in determining whether I should give the advice that a particular trial should go on. Obviously I have to consider these factors. The first factor is: What is the nature of the offence of which the man is accused? If it be a case where he was carrying out orders imposed upon him by some superior, be it a political or a military superior, obviously I might come to a wholly different conclusion from the one I might feel bound to come to were it a case where a man, on his own responsibility, was said to have committed a series of crimes of the most frightful nature.
  The first proposition I would enunciate, therefore, is this. In making up my mind as to what advice to give, I must have regard to the gravity of the crime. If the accusations are true, this man is one of the major war criminals of the whole war. The second matter I must have regard to in making up my mind concerns the treaty question. It is the fact that von Manstein has been asked for both by the Russians and by the Poles; and it is the fact that his offences are alleged to have been committed largely in those areas. I think it is only fair to say this in regard to the Polish trials: that we have had experience of the Polish trials and they have been quite fairly conducted. There is no doubt about it. I am not saying anything about any other trials, but I am saying that the Polish trials have been fairly conducted. Here is a case of a man who is accused of having committed the most frightful crimes against Polish nationals, and the Poles have asked that he should be handed over.
  In November of last year I discussed this matter with your Lordships and told you that we had reached the conclusion
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  that it was our duty to put these three men on trial. Reports reached me in due course indicating that two of the men were not fit to stand trial. Unhappily, like everything else in this very difficult case, even those reports were not unanimous, and I came to the conclusion that the best course I could take—with the approval of all my colleagues concerned—was to get the doctors concerned over here to see me. I asked the Attorney-General to come and sit with me, and I was fortunate in being able to secure the services of Professor Sir Henry Cohen who, as your Lordships probably know, is one of the greatest physicians in this country. Naturally, many of the reports were technical and really conveyed nothing at all to my mind. Having heard the doctors (we heard seven or eight of them) ultimately we came to the unanimous conclusion—the doctors, Professor Cohen and ourselves—that the health of von Rundstedt and the health of Colonel-General Strauss was not such as to justify us in exposing them to the ordeal and strain of a trial which must last, I suppose, six to eight weeks. But, equally, everybody was unanimous—including one of the eye doctors who saw von Manstein, and including Professor Cohen—that von Manstein was perfectly fit to stand his trial.
  I deplore the delay, of course. But do not let us talk about four years. It was not until August,1947, that we knew anything about the criminality of these people. Then, I think, we were quite right to press the Americans to take on this work. They were then actually engaged in trying the subordinates—the subordinates received sentences of some twenty years' imprisonment—and I sincerely hoped that they would be able to extend their trial to this man. That caused further delay. I am quoting from memory, but I think it was on December 23 that the matter came to me. We decided, rightly or wrongly, weighing the delay against all these other matters, that we would embark upon this trial. By that decision we must stand. I regret that I then said I hoped—and I expressly stated that it was only a hope—that we should be able to stage the trial by March. The immensity of the task has been far greater than I anticipated, and there has been—I deeply regret it—a further delay of some months. But, as I said just now, the indictment is almost

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  ready. I myself have seen it. I am not going to discuss it further, but I tell your Lordships that it is a very grave document. As I have said, it will be served upon this man in ten days, or something like that time, and then—always bearing in mind, of course, that we must give him whatever time is proper and reasonable for him to make his defence—we must stage the trial as quickly as we can. Your Lordships may rest assured that we shall conduct that trial in accord with our great traditions.
  Here I feel that I must say a word about the speech of a noble Lord for whom we have a great regard and affection, Lord Hankey. I should be proud to think that I could ever render to this State one-hundredth part of the service he has rendered. Yet I did not think that in his speech to-night he was rendering a service to his State. I regret very much that, without giving any indication to me or to the noble and learned Lord, Lord Oaksey, he should make these attacks on the Nuremberg Judgment—on the inaccuracy that was shown, and so forth. Of course, I am not in a position, without having had the slightest notice, to reply to the charges he made. For myself, I regret very much the way he seemed to speak in one breath of two things which are poles asunder—namely, the Nuremberg trial, on the one hand, and the trial of Cardinal Mindszenty, on the other. I regret that he found it possible to say that she thought it revolting for our judges to sit on the Nuremberg trial. I believe the Nuremberg trial performed a great service. I believe, although the right reverend Prelate does not, that not the least of its services was the laying down of the doctrine that the waging of aggressive war is a crime. But that has nothing to do with the present case of von Manstein's trial. He is not accused of anything of that sort. He is accused of breaches of the usages of war, with the murder on a huge scale of vast numbers of people.
  LORD HANKEY: I should like to explain to your Lordships that I could not give notice of the line I was taking because I was on duty in Paris, and I returned only late yesterday. I was still getting together the case which I have made. I would like to say this: I was not speaking on a legal point, but on a
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  political point, to show that from start to finish—though unfortunately they have not finished—this policy of trials has bedevilled the situation in Europe. That was why I was supporting the right reverend Prelate in his case for abolishing them.
  THE LORD CHANCELLOR: I understood the noble Lord to make special reference to the conclusions of the Nuremberg trials—for instance, about the Norwegian invasion, suggesting that we had started it. Quite obviously, the Germans had planned for days and weeks before they ever went there; and with the greatest respect to the noble Lord, it seems to me idle to say that we had done anything, either in that or in the invasion of the Ruhr in 1923, or in the use of black troops, which in any way justified Hitler in the policy he followed. Those are utter irrelevancies to this debate, and for my part, having made, most humbly and respectfully, to the noble Lord the protests which I felt I ought to make, I desire to say no more about it.
  LORD HANKEY: I do beg the noble and learned Viscount to read Mr. Churchill's book and to compare it, as I have done, with the account of the Judgments of the Nuremberg tribunal. I think he will have to arrive at the same conclusions as I have.
  THE LORD CHANCELLOR: I shall certainly take the opportunity of reading the documents to which the noble Lord has referred, and if he will do me the favour of re-reading again his own words, I think he will understand why I—and I think I am not alone in this view—rather regretted the way in which he expressed himself. That is all I have to say. I was glad to hear the announcement which the noble Lord, Lord Henderson, made as to our general policy, which I hope will go some way towards satisfying the right reverend Prelate. But for my part, having come to this conclusion in November, and having regard to the circumstances of the case (and, after all, I am in a slightly different position from that of any of your Lordships, because I am the only one who knows something of the circumstances), I venture to think that if your Lordships were in my position you would probably agree with the line that I am taking.
  7.33 p.m.
  THE LORD BISHOP OF CHICHESTER: My Lords, I am sure that the whole House is grateful for the debate as it has pursued its course, and especially for the full statement made by the noble Lord, Lord Henderson. I think the point of his statement is to be summed up in this way: that from now on there is to be in British courts a complete cessation of prosecutions and trials that have not been begun, with the single exception of von Manstein. The noble Lord also said that a programme of review was already in operation, though new evidence would be required before cases that had been reviewed would come up for further consideration. I think I may take it from what the noble Lord has said that the spirit which animates the programme in the American Zone will in future animate the programme in the British Zone. It is a satisfaction that America and the United Kingdom go hand-in-hand in this total policy of clemency where possible, and in the cessation of prosecutions.
  I do not want to trespass further in the controversy about the law relating to superior orders, but I am grateful to the noble and learned Viscount, Lord Simon, for the kindly words in his last remarks, when he did me the honour of making an apology. What I thought was a little harsh was obviously due to some misunderstanding. All that I wished to say in my introductory observations was that there were points of criticism of the law under which the judges actually did their work.
  With regard to the excepted case of Field-Marshal von Manstein, I am sure that everybody has appreciated very much the spirit in which, from start to finish, the noble and learned Viscount on the Woolsack has considered this matter. It has been a matter of painful anxiety and troubled conscience to him throughout. I only wish that it had been possible for him to fall in with the wishes expressed from so many quarters of the House, that in all the circumstances at this stage von Manstein should be set free. It is, of course, impossible, and would be entirely wrong, as the noble and learned Viscount said, to say anything for or against the trial itself. I know nothing about the circumstances of the indictment; I express no opinion on the charges, though I have seen them. But I still wish that
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  the trial was not to take place. I am glad that the trials of Rundstedt and General Strauss have been abandoned. I appreciated the noble and learned Viscount's assurance—though none of us needed it—that when the trial comes it will be conducted in accordance with the best tradition of British justice, both in spirit and in letter. With that remark, and thanking your Lordships for the patience with which you have attended to my poor remarks, and the interest with which you have followed the whole debate, I beg leave to withdraw my Motion.
  Motion for Papers, by leave, withdrawn.

  MID-NORTHAMPTONSHIRE WATER BOARD ORDER CONFIRMATION (SPECIAL PROCEDURE) BILL
  Brought from the Commons; read 1a, and (pursuant to Section 6 (4) of the Statutory Orders (Special Procedure) Act, 1945) deemed to have been read 2a, and reported from the Committee.
  SPECIAL ROADS BILL
  Returned from the Commons, with the Amendments agreed to.
  WATER (SCOTLAND) BILL
  Returned from the Commons, with the Amendments agreed to.