HL Deb 12 July 1968 vol 294 cc1215-28

11.14 a.m.


My Lords, I beg to move that this Bill be now read a Second time.

Moved, That the Bill be now read 2ª.—(The Earl of Listowel.)

On Question, Bill read 2ª.

House adjourned during pleasure, and resumed by the Lord Chancellor.

LORD MOLSON moved, that it be an Instruction to the Committee to consider whether:—

  1. (a) the powers proposed by the Bill are in excess of those required to implement the existing proposals for the development of the land described in the Schedule to the Bill; and
  2. (b) the provision made in the Bill is adequate in relation to the existing burial ground and memorial garden on that land, or, alternatively, for the setting aside of parts of that land as open to access by the public equivalent in all respects to the land now so available; and
  3. (c) the requirements of Clause 8 of the Bill with regard to the removal and reinterment of human remains are either necessary or desirable:
That the Committee have power to hear evidence other than that tendered by the Promoters.

The noble Lords said: My Lords I am speaking for the Commons and Open Spaces Preservation Society, of which I am treasurer, and we have the general support in this matter of the National Playing Fields Association, the Metropolitan Gardens Association and the London Society. When we first saw this Bill it appeared to us that the intention was for the Church to acquire power to dispose of the whole of this burial ground and churchyard as a piece of dealing in real property. It is a useful open space about 2½ acres in extent, situated at the corner of Church Lane and High Street in the London Borough of Haringey. The need for provision regarding the maintenance of part of the site for a memorial garden and for access by the public is particularly important in a neighbourhood of this kind. It may well be said that the London Borough of Haringey as a whole has a certain amount of open space, but the new London boroughs are very large and it is of the utmost importance that in a somewhat congested area like Haringey there should be no unnecessary diminution in the amount of open spaces.

When we met the Church authorities we found that, so far from it being their intention to sell this open space for commercial purposes, they had a perfectly excellent scheme for redevelopment. The Victorian church there is in danger of collapsing as a result of subsidence. They propose therefore to demolish this dangerous old Victorian church, to build a new, modern church, close to the old medieval church tower, part of a long-since destroyed earlier church, which is now free-standing as a campanile, to have something in the nature of a small meeting place attached to the church, a garden of rest, and on most of the site where the present church stands, to build a church school. It is their intention to preserve the memorial garden and, if funds make it possible, they may build a small rectory in the corner.

When we came to know what the Church authorities had in mind we regarded it as a model piece of redevelopment. But we then asked why the Bill was drafted in its present very wide terms. The explanation was that the Bill was drafted before the Church had decided how to redevelop this site. Standard clauses were used which would cover almost any kind of purpose which was intended. It was in fact one of these great omnibus Bills giving very wide powers which are greatly in excess of what the Church authorities intend should be done. They also say—and I shall come to this point again at a later stage—that they want room for negotiation when they are dealing with the Education Committee of the London Borough of Hornsey, who will buy this land, build the school and then lease the school back as a church school to the Church authorities.

For 37 years now I have had experience of Governments and Promoters of Bills drafting their Bills so widely as to include almost all eventualities, and then when legislators say, "But really these powers go too wide", those responsible for the Bill, whether they are private individuals promoting a Private Bill or Governments of all three political Parties, say, "Well, we only want the power to do this and we give an assurance that in fact we will not use it". And the answer that Parliament gives on every occasion, or should give on every occasion and frequently gives, is, "Show what it is that you want to do, justify the powers you are asking for and we will give you those powers".

Less than 72 hours ago, while walking along a corridor upstairs, I had something in the nature of an informal offer of a compromise under which the part of the scheduled land which is going to be retained for Church purposes would be excluded from the Bill. It is quite impossible at this stage to attempt in 72 hours, when my advisers, and indeed the advisers of the Church authorities, are deeply engaged upon other Private Bills, to come to a final conclusion as to exactly what the meaning of this compromise may be. But the very fact that this compromise has, informally and without prejudice, been offered means that there is justification for the Instruction which I am now moving. This may be a satisfactory settlement, but it should certainly be looked at by a Committee of this House in order to understand exactly what is involved.

I come to the second point, that is, what effect the clauses of this Bill freeing the land from all restrictions will have upon the purchase price of the land. Any of your Lordships who have read Section 17 of the Land Compensation Act 1961 will realise that something in the nature of art education in metaphysics is necessary to understand that section of the Act. In simple layman's words it provides that in cases where a local authority proposes compulsorily to acquire land for a purpose which has no marketable value, then the price of that land shall be deemed to be the price that would have been paid if it had not been used for that purpose but for some other suitable purpose. I am not saying that there is anything wrong with that section of the Compensation Act. It may be just and it may be inevitable that the compensation or purchase price should be calculated in that way. But I am sure your Lordships will agree that there can be differences of opinion as to what the price in fact will be as a result of that method of valuation.

I must say that certainly my technical advisers are in disagreement with the view of the experts of the Ministry of Housing and Local Government upon this point, and I am strongly of the impression that the ecclesiastical authorities are advised in much the same way as I am and differently from the way in which the Government have been advised. This is a difficult matter, and I am sure that it is desirable that it should be looked into further in order to ascertain exactly what the facts are and what the valuation is likely to be. It is a matter of very great importance.

In the case of the churchyards of St. Mary, Aldermanbury, and St. Dunstan's in the East the compensation that was paid by the Corporation of the City of London was nearly three-quarters of a million pounds. Therefore, this matter of compensation, the basis on which it is made and the effect upon the valuation clauses of this Bill, is certainly a matter which I trust your Lordships will agree should be investigated further by a Committee of this House.

I have said that it is the intention of the Church authorities, which I entirely accept, to preserve the memorial garden which was provided at public expense, is maintained at public expense as a war memorial, and is of great value and amenity to the local inhabitants. If your Lordships will turn to Clause 4(3)(f) you will find that it reads: The provision (if necessary) of a replacement for the existing garden of remembrance, on the scheduled land.

It is clearly wrong that the Bill should be so drafted as to include the words "if necessary", and I hope and believe that that is one of the numerous Amendments to this Bill upon which we can have complete agreement between the Promoters of the Bill and ourselves. Again, it is a matter of redrafting the Bill in order to give effect to what I say again is the admirable scheme of redevelopment which the Church authorities have in mind.

I come to paragraph 3 of my Instruction, which deals with the exhumation and reinterment of bodies. I referred to this matter when we debated the Pastoral Measure, and I am glad now to have from the Home Office confirmation of the reasonableness and accuracy of some of the things that I then said. I have had two letters from the Home Office. The first one gave as the reason for these provisions public health. That reason has been dropped in the second letter; and rightly so, because in this case the burial ground has been closed since 1872. Therefore there can be no question of public health involved.

I have, however, had a useful and helpful letter from the noble Lord, Lord Stonham, giving the Home Office view about this matter, and I read what he wrote: The Home Office used to require the removal of all bodies from a disused burial ground, regardless of whether they are likely to be disturbed or not. This was often excessively expensive, as you pointed out with reference to St. James's, Hampstead Hill.

Speaking from memory, I think I gave the figure of £45,000 as the cost of reinterring the bodies. This expense was taken into account when we formulated our present practice of requiring removal only of those bodies which are likely to be disturbed in the course of redevelopment. This present requirement is not an administrative whim. It simply seeks to avoid the Common Law misdemeanour of disturbing interred human remains which may otherwise be circumvented only by a faculty from a Bishop or a licence from the Secretary of State under Section 25 of the Burial Act 1857. Our present view is that the provisions made in Private Acts since that of St. George's, Hanover Square 1964, and in the Pastoral Measure have struck the right balance.

It was not, I think, generally realised that there had been a substantial change in the requirements of the Home Office in this matter as a result of the Act dealing with St. George's, Hanover Square in 1964. That Bill was most carefully examined as a result of an Instruction not dissimilar from, though not identical with, that which I am moving to-day. It is obviously desirable that in a matter of this difficulty and complexity the position should be made clear. As I say, it was unknown to me that Bishops had power of dispensation in these cases, and certainly in most cases the power is exercised by the Home Secretary. It is therefore extremely important that we should know, that everyone concerned should know, what will be the way in which the Home Secretary will exercise his discretion in this matter. If this is to be done, it is vital that it should be done now.

Under the Pastoral Measure the power to close churchyards and to deal with all these matters passes for good and all from Parliament to the Church Assembly. I feel confident that the Church Assembly would not want to depart from what has been the accepted practice of Parliament, and I believe that there is a great likelihood that in this year a more liberal and a less restrictive attitude will be taken. A Burial Bill is now in course of being prepared in the Ministry of Housing and Local Government, and it is extremely desirable that the Government should have some indication of public opinion upon this matter.

I should like also to mention a curious anomaly in the London Burial Act 1884. If an existing place of worship is going to be extended there is no obligation to exhume and reinter any bodies which are under that extension. If, as in the case of this Bill, a new church is going to be built just nearby but cannot be described as an enlargement of the church because this church is being demolished and replaced, then this onerous obligation of disinterring and reinterring arises under the Act of 1884. I cannot believe that that is logical and I cannot believe that it is reasonable. If, as a result of the third part of my Instruction, the Church is spared what I regard as unnecessary expense and this redevelopment is made more advantageous to them, then I shall regard that as an additional benefit which I am glad that we should confer upon the Church.

My Lords, we have no desire to delay the passing of this Bill when once it has been amended. Provision has been made for this Church school in the programme of 1968/69 and it is of the utmost importance that this Bill shall be on the Statute Book in order that the Church may take advantage of the opportunity that it has of building this church. I have had the most friendly discussions on this matter with the Church authorities. I believe that many of the Amendments which I have said are necessary can be agreed between us, and I hope that your Lordships will accept this Instruction. I hope that a Committee will look at it and amend the Bill, and I hope that the Bill in its amended form will be even more satisfactory to the Church than the present one. I beg to move.

Moved, That it be an Instruction to the Committee to consider whether:—

  1. (a) the powers proposed by the Bill are in excess of those required to implement the existing proposals for the development of the land described in the Schedule to the Bill; and
  2. (b) the provision made in the Bill is adequate in relation to the existing burial ground and memorial garden on that land, or, alternatively, for the setting aside of parts of that land as open to access by the public equivalent in all respects to the land now so available; and
  3. (c) the requirements of Clause 8 of the Bill with regard to the removal and reinterment of human remains are either necessary or desirable:
That the Committee have power to hear evidence other thin that tendered by the Promoters.—(Lord Molson.)

11.31 a.m.


My Lords, speaking from the side of the diocese, we are very appreciative of the way in which the noble Lord, Lord Molson, has discussed these various points with our advisers from time to time, and I welcome especially his concluding remarks about the necessity for speed in order that opportunities may not be lost. May I, before dealing with his particular points, make a general point which I believe has application to the Bill which your Lordships will be considering shortly in respect of St. Saviour's Paddington? As Bishop of the diocese, I regard it as my primary purpose to see that the best possible provision is made for the pastoral care and life of the parish concerned. To that overriding pastoral requirement, in my own judgment, aesthetic and architectural points, however important, must be regarded as secondary.

The spiritual work of any parish is certainly not helped when the parochial authorities have the responsibility of maintaining a church which is over large for modern conditions and which may need very considerable sums to repair and restore it, and far too much time and energy goes into raising such vast sums of money for these purposes. Our ancestors, in their zeal for church building sometimes erected churches which were too large even for the needs of their own day—in fact they frequently found that they had made a mistake. There is a case in the City of London where a chapel of ease for St. Bartolph's Without, Aldgate, was built in 1860 to meet the needs of an overflowing congregation, and which was closed and demolished, I believe, within twenty years because the congregation WAS no longer over-flowing and, indeed, not present at all.

The Church of St. Mary, Hornsey, is perhaps one of these witnesses to the faith of our Victorian predecessors. There is, indeed, a local legend that it was built in a cathedral manner because there was a hope that there might be a separate diocese of North London, and Hornsey was staking out its claim to be the cathedral area. However that may be, in 1889 it was a dignified but excessively large building, the maintenance of which today, had there not been problems of restoration, would have been a very serious matter for the people of Hornsey now that the whole character of the neighbourhood has changed. But with the virtual collapse of the structure of the 1889 church, clearly something has to be done. At the moment the inside of the church is held up only by scaffolding round five or six piers, and I am told that a considerable sum of money has to be spent each month in paying for the scaffolding, and the parochial church council is naturally anxious to be spared that expense as soon as possible.

So far, the noble Lord, Lord Molson, and I are, I think, speaking with one voice, and I was glad to have his reassurance that in his opinion the scheme put forward by the Church authorities for the use of this site was (I think his phrase was) "an excellent one". It is one which has commended itself to the incumbent and to the parish, as well as to the diocesan authorities. We believe it is the right way forward, and I am glad to know that the noble Lord agrees with us. I hope, however, that I may be allowed to say that I trust that the reference to a Select Committee may not unduly delay some of these decisions. The noble Lord has referred to the necessity for speed, particularly with regard to that part of the scheme which involves the erection of a new school—because it is provisionally in a building programme—and we have some reason to fear what may happen to a school that is not ready to be in a building programme to which it has been allotted. Speed, therefore, is important to us for many reasons. We doubt also whether it is necessary to labour some of the points because we accept the substance of what the noble Lord has suggested as Amendments.

Under his first Instruction which, as he remarked, followed traditional form, the purpose basically was to gain powers to release the land from the consequences and disabilities arising from consecration. Instruction (a) was drawn in the form which was, when the Bill was prepared, the current form, and we have no intention whatsoever of resisting anything which would make it clear what we are intending to do.

On the noble Lord's second Instruction, (b), perhaps there are two points that should be made. We had believed that the planning procedures gave adequate safeguards for all that was needed to preserve the open character, and with regard to the garden of remembrance the Promoters have in mind an Amendment to delete those words to which the noble Lord, Lord Molson, took exception, and which would make it an obligation to provide a replacement for the existing garden of remembrance. The Church authorities are as anxious as the local people to preserve this open space of the Garden of Remembrance.

With regard to the noble Lord's third Instruction, (c), speaking more personally I have every sympathy with his words to simplify the procedures with regard to the reinterment of human remains. We know how expensive it has been for the Church in a number of previous cases, and we are very grateful indeed to the noble Lord for the interest which he has shown in this particular point. But again with speed in mind, and because there is no difference of opinion between us on this point, the Promoters have in mind that, if necessary, there should be Amendments both to meet the points raised by the Attorney General and also to make it clear, if it is not already clear, that the human remains to be removed would be limited to those involved in work connected with the excavations for the intended new church and the erection of any building other than the church. That is virtually what the noble Lord, Lord Molson, was saying should be the procedure. Again, as I say, that is an Amendment which the Promoters have in mind to suggest to your Lordships.

Since we believe that we are, in effect, of one mind with the noble Lord on the principles involved, we hope that the House will find the means to enable us to go forward with the maximum of speed and the minimum of cost.

11.42 a.m.


My Lords, I think that there is little for me to say on this Bill and on the proposed Instruction. Perhaps it would be helpful to the House if I were to clarify as authoritatively as I can what we understand to be the position about planning law in the case of Hornsey. The Bill before the House includes the usual saving clause for town and country planning, so that there is nothing in it which overrides that. No other development proposals are included in the Bill, other than the proposals for which the owners of the site already have planning permission from the London borough. The question of compensation was raised by the noble Lord, Lord Molson. I am afraid that I am not in a position to tell him how it was that the City Council ran into a compensation liability in respect of those two City graveyards. I am finding out, and I will let the noble Lord know.

To turn now to the case of Hornsey, the liability of a planning authority to pay compensation on refusal of planning permission to do anything depends on the use for which the land in question is zoned. The owners of this site, the Church authorities, want to use it for the church and school purposes about which the House has been hearing. They have applied for planning permission, and they have got it. And that, for the moment, is that. The question in the minds of certain noble Lords may be: might not the provisions in the Bill which free the site from all its ecclesiastical disabilities change the position for the future, so that many years hence the owners would be able to ask planning permission to build on the site something extremely profitable, and, if refused permission, to claim compensation from the borough council? The answer to this is, "No", because the land in question is zoned for planning purposes as open space and cemetery. So long as that zoning remains unchanged, it will not be open to anybody to claim compensation because permission to use it in some other way has been refused.

The only other point I will take up is the question of burials. I confirm that there is in preparation at the moment general consolidation legislation. This is an enormous subject, and I cannot say when it will be introduced. We hope that it will be fairly soon, but it is not very near the top of the queue for impending legislation. It may have been in Lord Molson's mind that discussions in the Select Committee to which your Lordships may refer this Bill would act as a sort of preliminary sounding board for informed opinion on the general question of what burial law ought to be. This is a matter for the Lord Chairman, and quite possibly he will refer to it. Your Lordships will no doubt pay attention to the question of whether or not it is right to have a discussion of principles for future general legislation arising out of the proposed Instruction to the Committee on one particular local Bill referring to one graveyard. I express no opinion on the matter, but merely lay it before your Lordships.

11.46 a.m.


My Lords, I should like to say a few words about some of the procedural aspects of the Motion for an Instruction which is before the House. I would say first that if the Instruction is agreed to by your Lordships I will, acting under the provisions of Private Business Standing Order 92, report to the House that in my opinion this Bill, which is unopposed, should nevertheless be proceeded with as an opposed Bill and referred to a Select Committee. That was the request made by the noble Lord, Lord Molson, in his opening speech. My reason is that there can be little doubt that the three points raised by Lord Molson in his Instruction are more suitable for consideration by a Select Committee than by the Committee on Unopposed Bills.

In reply to the right reverend Prelate the Bishop of London, who emphasised the need to avoid any unnecessary delay, may I say that the Committee will be appointed as soon as possible; and I see no reason why it should not start its work very soon after we resume after the Recess. I have no doubt that members of the Committee will bear carefully in mind the wish of the right reverend Prelate that the matter should be dealt with expeditiously. I hope that, with the co-operation of your Lordships, the Bill may be passed into law before the end of the year. I would also expect that, as is usually the case when an Instruction to a Select Committee has been passed by the House, the Select Committee would make a Special Report on the Bill to the House and deal in particular with the matters which have been raised in the Instruction.

The House will note that it is also being asked in the noble Lord's Motion to agree that the Committee to which the Bill is referred should have power to hear evidence other than that tendered by the Promoters. I suggest that the House should agree to this part of the Motion, as otherwise the Select Committee may not be in a position to comply adequately with the terms of the Instruction it receives from the House. Your Lordships will appreciate that as there is no Petition against the Bill, the Committee would be limited to hearing witnesses called by the Promoters. They might, however, wish to hear evidence from someone who is not concerned with the promotion of the Bill, evidence which they regard as relevant to the Instruction given by the House to the Committee. I might remind your Lordships that the House gave similar authority to the Select Committee to which the Brighton Marina Bill was recently referred, and in that case that Committee heard two witnesses in addition to those of the Promoters.

Finally, I should like to make one more observation on the procedure to be followed in the Select Committee. In the proceedings on the Brighton Marina Bill certain of your Lordships proposed that in cases where a Bill, though unopposed, is referred to a Select Committee, the Committee should be able to instruct counsel to assist them in eliciting evidence from witnesses appearing before the Committee. As I said at that time, I regarded this as an interesting and certainly far-reaching proposal. I can see difficulties arising both from a point of view of expense and also to the extent to which the proposal is entirely novel. I think I am right in saying that nowhere else in Parliament at present do Committees instruct counsel to assist them. But I am prepared to undertake that the implications of this proposal will be carefully examined. It might well prove the sort of question that would be suitable for reference to the Procedure Committee.

Meanwhile, I would propose that in the present case the noble Lord, Lord Molson, or any other interested Peer, should avail himself of the provisions of Standing Order 58, which would mean that he would be able to attend the Committee and speak, but not to vote. As a member of the Committee a Peer concerned would be able to ask questions, through the Chair, both of the counsel or agents appearing for the Promoters and of any witnesses appearing before the Committee. If the House agrees to the Instruction, I suggest that the procedure I have outlined would be the most appropriate.

11.50 a.m.


My Lords, I think I have a right of reply, but, if not, I ask your Lordships' permission to say one or two words. I should like to express my deep appreciation of the reasonable and co-operative way in which the right reverend Prelate has accepted my proposals. Also, I think that the procedure which the Lord Chairman of Committees has proposed would be extremely satisfactory. In accordance with the general spirit of friendly co-operation between the interests that I represent and the Church authorities, we should not propose to employ counsel. We think that this matter can perfectly well be worked out under Standing Order 58. It would be possible for me to sit with the Committee and, of course, the right reverend Prelate could also do so if he wished. We are most anxious to keep the expenditure upon this matter to a minimum, and I believe that entirely satisfactory results can be obtained by the procedure which the Lord Chairman of Committees has proposed. I hope, therefore, that this Instruction may go through with general acceptance and good will.

On Question, Motion agreed to.

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