Lords Sitting of 24 April 1969

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Derby.

WAR PENSIONS AND ALLOWANCES
LORD FRASER OF LONSDALE: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether the Prime Minister's indication in January, 1968, that the uprating of war pensions and allowances could be considered in the autumn of 1969 is still in the minds of Her Majesty's Government; and whether it is the intention of Her Majesty's Government to uprate war pensions and allowances before the end of 1969.]
BARONESS PHILLIPS: My Lords, the answer to both parts of the Question is, "Yes".
LORD FRASER OF LONSDALE: My Lords, may I ask the noble Baroness whether a statement about this matter was first made to Parliament or outside in the country; and, secondly, whether the Chancellor made provision for this expenditure in his Budget? Because he did not mention it.
BARONESS PHILLIPS: My Lords, I am sorry I cannot give the noble Lord a direct reply to the first part of his supplementary question, but I will of course find out and let him know. I think we can assume that the Chancellor certainly included this; and, of course, the timing is the same as in the case of the other increases in pensions—in other words, in early November.
LORD DRUMALBYN: My Lords, does the noble Baroness mean to imply that the Chancellor intended that it should be included, or is she telling us that he did in fact include it? I was in
546
the other place at the time, and I have no recollection of his mentioning it.
BARONESS PHILLIPS: My Lords, I think I said that I assumed it. I should prefer to check this point before I make a categorical reply. Perhaps the comforting thought is that the increases are going to take place in any case. Perhaps I am being too naïve, but is it very important when they were announced if they are now to be a fact?

POST OFFICE AIR LETTER FORMS
3.8 p.m.
LORD FRASER OF LONSDALE: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government why the Post Office is still selling narrow foolscap air letters, which are not as convenient to use in a typewriter or a file as were the earlier quarto forms.]
LORD BOWLES: My Lords, the current air letter form lends itself better to handling in mechanised sorting offices than the old-style one.
LORD FRASER OF LONSDALE: My Lords, should we be slaves to mechanisation to this extent? Is the noble Lord aware that every typist in Britain finds this new air letter form inconvenient in her typewriter and in her file? It requires buying a special carbon. Among others, there are quite a number of blind typists who find it inconvenient. May I also ask the noble Lord whether he is aware that the old form allowed 10 per cent. more typing space than the new one, and will he revert to it?
LORD BOWLES: My Lords, first of all, I do not think we can all be slaves to typists, either. The position is that I made inquiries. There are a certain number of blind typists in the Post Office, and they find no difficulty in this method at all. What they have to do, as the noble Lord probably knows, is to fix their margin stop so that when they are getting towards the end of the line they know when to start the next line. The

547
shape was changed by reason of international regulation, and it conforms with the Post Office preferred (P.O.P.) range. The all-round sealing is essential now—it could not be done on the old forms—so that there is no choking of the machines which are cancelling the stamps on these air mail letters which are going through the machines at 20,000 an hour. The old forms were ballooning and expanding because they were going through at speed. It was therefore quite likely that every ten minutes or a quarter of an hour these machines would have to be stopped so that a mistake could be put right.
LORD FRASER OF LONSDALE: My Lords, is the noble Lord really saying that the machines of to-day can deal only with foolscap and not with quarto?
LORD BOWLES: My Lords, I did not say anything of the kind. I said that this was an international convention, by which we are bound.
LORD TREFGARNE: My Lords, can the noble Lord say whether the Government made any representations about the difficulties of this new size of air letter when the international regulations were arrived at?
LORD BOWLES: No, my Lords but we are going to Tokyo in November of this year and we are going to make some representation along those lines then.
LORD STRANGE: My Lords, arising from his reply, may I ask the noble Lord whether there is also an all-round sealing on the stamps which go through and which have a mark across them—the 5d. stamps—which I understand the computer picks out? I hope your Lordships will excuse the length of this interruption, but I understand that if you put some gum arabic across a 4d. stamp it goes through as a 5d. stamp. Is that right?
LORD BOWLES: My Lords, we are talking about air mail letters at the moment, and not about 4d or 5d. stamps at all.

EXPORT OF EWE TEGS
LORD NUNBURNHOLME: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what action has been taken by the Minister of Agriculture, Fisheries and Food to prohibit the export for slaughter of the best ewe tegs, which should be retained in Great Britain to maintain and increase our breeding flocks.]
LORD BESWICK: My Lords, Her Majesty's Government have no plans for prohibiting the export trade in fat sheep, which has helped to strengthen the market to the benefit of our producers and has brought in valuable foreign exchange. No figures of the numbers of ewe tegs exported are separately available, but this trade should not adversely affect our production objectives, since those which are being sold for slaughter abroad would, if they had been retained in this country, most probably have been used for meat rather than kept for breeding next season.

INTERMEDIATE AREAS: HUNT COMMITTEE'S PROPOSALS
3.11 p.m.
THE LORD PRIVY SEAL (LORD SHACKLETON): My Lords, if it is convenient to the House, I rise now to inform your Lordships that the Report of the Committee under the chairmanship of Sir Joseph Hunt is being published to-day, and copies will be available in the Printed Paper Office after 3.30 p.m. I should remind your Lordships that the Hunt Committee was concerned with considering the situation in particular areas other than development areas where the rate of economic growth gives cause, or may give cause, for concern. A Statement is being made in another place this afternoon, but it is a very long one and I wonder whether it would meet the convenience of the House if I did not repeat it to-day but, following this brief statement, circulated it with the OFFICIAL REPORT. I should stress that we always firmly reserve the right of your Lordships to have repeated here

549
Statements that are made in another place, but they do sometimes complicate our lives.
Following is the Statement:
"I should like to make a statement on the Report of the Committee on the Intermediate Areas under the Chairmanship of Sir Joseph Hunt which is published today.
"As the Report touches on the interests of so many parts of the country my statement will be somewhat lengthy and I apologise for this.
"The Committee was appointed in September, 1967, and Sir Joseph Hunt and his colleagues have prepared a very full report on a subject of great complexity. The Government warmly appreciate the Committee's work.
"Its principal conclusions and recommendations are as follows:—

(i) The whole of the Yorkshire and Humberside and the North West Regions should qualify for an entirely new 25 per cent. building grant not linked to the creation of new jobs. They should also qualify for training grants and direct training assistance on the same basis as in the development areas.

(ii) In selected growth zones within these Regions there should also be Government estates and factory building with supporting investment including link roads.

(iii) For these two Regions and in the Notts./Derby and North Staffordshire planning sob-divisions there should be an 85 per cent. grant for derelict land clearance as in the development areas. The clearance programme should be speeded up in all these areas and in the development areas.

(iv) The industrial development certificate control should be relaxed throughout the country by raising the exemption to 10,000 square feet.

(v) The Merseyside development area should be de-scheduled and treated on the same basis as the rest of the North West Region.

Four members in three Notes of Dissent have expressed reservations about some of the Committee's findings
"The Government have considered these recommendations against the
550
background of our assessment of general prospects for the regions in the recently published Economic Assessment to 1972, in the context of our regional policy as a whole and within the need to limit public expenditure.
"We are convinced that it is necessary to retain for the development areas and special development areas a large margin of preferences in assistance to industry. Although the massive increase in Government preferential assistance to industry—for these areas—from some £30 million in 1964 to over £260 million—is making a vital and growing contributions to overcoming their still serious structural problems, none of these areas is yet ready for de-scheduling. The Government do not propose therefore to accept the Hunt Committee's recommendation for the de-scheduling of Merseyside.
"Against this background we have considered carefully on the one hand the Hunt Committee's arguments for spreading limited resources over the whole of the two Regions concerned and on the other hand for concentrating these on a few areas where present and prospective needs are greatest. We have concluded that the better course is to concentrate assistance to industry with an employment link on a strictly limited number of smaller areas. For this reason, we have not been able to accept the Hunt Committee's proposal for a general building grant.
"The Government consider that the selection of areas to be given assistance to industry must be governed strictly by criteria of need, especially the level and character of unemployment and numbers of unemployed, the incidence of high net outward migration and the real scope for industrial growth.
"I turn now to our proposals.
" Assistance to Industry: Areas
"In indicating the areas to which in our view these criteria most clearly point I must emphasise that I describe them in broad terms. We shall take fully into account any further views of the Regional Economic Planning Councils. Consultations with them will be completed and the precise boundaries of these new intermediate areas will be announced after the Whitsun Recess. Thereafter we will bring forward

551
the necessary legislation as quickly as possible.

"These areas are:

The Yorkshire coalfield area,

The Erewash Valley area of Derbyshire,

Parts of Humberside,

The main industrial areas of North East Lancashire, east of the proposed New Town,

A substantial part of South East Wales,

Leith,

Plymouth.

"We have considered the problems of other areas, but we have concluded that these problems do not at present justify the use of financial incentives to divert industry to them.
"Assistance to Industry: Measures
"We propose to seek powers to make available to these intermediate areas certain assistance under the Local Employment Acts. This will not include the loans and grants, for general purposes, which are made in the development areas on the advice of the Board of Trade Advisory Committee. What it will include is:

(i) Grants at 25 per cent. of factory building costs.

(ii) Government built factories (both custom built and advance factories) on the same basis as in the development areas;

(iii) The full range of development area training grants and other training assistance together with assistance for the transfer of key workers.

"The date from which firms will be eligible for this assistance will be announced later.
"We agree with the Hunt Committee that industry in the intermediate areas should be encouraged particularly in places which have real scope for growth. The studies made by Regional Economic Planning Councils have attached importance to the development of suitable growth zones and we will take Councils' views fully into account.
"There will be some additional expenditure on roads in the selected areas and proposals for the provision of new housing associated with industrial
552
growth will be encouraged. There will also be an enlarged national programme for derelict land clearance for schemes certified by the Board of Trade as contributing to the development of industry in the area. For the North West and the Yorkshire and Humberside Regions, as a whole, in the areas selected for assistance to industry and in the North Staffordshire and Notts./Derby planning sub-divisions, we intend to seek power to make available to local authorities a capital grant of 75 per cent.
"I turn now to i.d.c. policy.
"The industrial development certificate control is operated flexibly and with sensitivity to industrial and local circumstances, but it remains essential to relate its operation overall to the priorities of our regional policy, particularly to the needs of the development areas. The Board of Trade will continue to operate the i.d.c. control so as to give the development areas and the new intermediate areas general priority. In the rest of the North West and the Yorkshire and Humberside Regions, the control will continue to be administered liberally except in the congested parts or places otherwise unsuitable for industrial expansion.
"We do not accept the Hunt proposals that the general exemption limit should be increased from the present levels to 10,000 square feet or that all control should be removed from moves to overspill towns. But we do see the need for a more flexible policy for such moves where planned development may be held up if the flow of industry to overspill towns from an exporting area is impeded. It certainly is our intention that all approved schemes for new and expanding towns should be properly supported by employment opportunities.
"When these measures are in full operation their cost will amount to nearly £20 million a year. This will be met out of the very substantial and growing sums being spent on assistance to industry in the development areas. Even so, expenditure in the development areas will remain very high and they will of course retain a very large and continuing preference over the rest of the country including the new intermediate areas.
"The work of the Hunt Committee and their proposals for the new intermediate areas which have flowed from its Report mark an important new stage in the development of Regional Policy. We are pressing on with the recovery of the development areas. We are responding flexibly to the changing needs of the different parts of the country. We will continue to seek, through our Regional policy to serve the interests of every region and of the whole country."

CUSTOMS DUTIES (DUMPING AND SUBSIDIES) BILL [H.L.]
Returned from the Commons, agreed to.

LAW OF PROPERTY BILL [H.L.]
3.13 p.m.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD CHAMPION in the Chair.]
Clause 1 agreed to.
Clause 2 agreed to.
Clause 3 [Rent while tenancy continues by virtue of s. 24 of the Act of 1954]:
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 1:
Page 2, line 40, leave out from ("section") to ("subsection") in line 42.
The noble Viscount said: This Amendment relates to the question of the interim rent that is to be paid after a certain time while the court is deciding whether or not it is going to grant a new lease to the tenant who has applied for it, either by himself or in opposition to his landlord's attempt to get him out of the premises. The Law Commission Report on this matter dealt with this subject in paragraphs 22 to 26. They reject various methods of dealing with this
554
matter and come down in favour of these words in paragraph 25:
"It is our view that any change in rent should operate only prospectively"—
that is all right; that is what tae Bill says—
"and that the market rent should be only one of several factors, including the rent payable under the current tenancy, to be taken into account in arriving at what is a fair rent in the circumstances."
In their draft Bill the Commission use the words "fair rent"; but this Bill, in subsection (1) of this clause, uses the words:
"a rent which it would be reasonable for the tenant to pay"
At no time do the Law Commission explain why they consider that the rent under the old tenancy should be taken into account and I do not think that the noble and learned Lord the Lord Chancellor explained it in his explanation of the Bill on Second Reading. As I understand the position, it is thought right that the interim rent should be possibly below the final market rent that is to be fixed by the court, or by agreement if a new lease is agreed; and that, of course, is right, because the interim rent is probably a rent which is going to last only for a comparatively short time. Equally, however, the probabilities are that if a situation has arisen where there is dispute and the matter is going to the courts it is because the rent under the old tenancy (which goes on until an application of this sort is made to the court or the matter is agreed) is below what is now the market rent. One of the difficulties has always been—and this is recognised by the Law Commission—that it pays the tenant to hang on and to keep litigation going as long as possible, because he will then remain in the premises at a rent which is rather below the market rent.
One of the great merits of this Part of the Bill is that it contains some provisions that are to the benefit of the landlord and others that are to the benefit of the tenant. This balance seems to me to be a very proper one which we should at all times seek to maintain. However, I do not understand why the tenant is being given what in this case seems to me to be more than preferential treatment. There is no question that the interim rent would be fixed on the basis of a long-term rent at the current market value for some period of say, seven or fourteen years; because subsection (3)

555
says that it should be based on a tenancy from year to year—and that would be, in all probability, a lower rent in any case, than the long-term one. During the interim period, therefore, the tenant will be getting from the court a rent lower than the one which would ultimately be fixed if a new tenancy were granted. This seems to me to be enough.
The difficulty about requiring the court to have regard to the rent payable under the terms of the tenancy—that is, the old tenancy—is that one does not know what regard the court is going to have to it and one does not know in what way the court is going to have regard. Such rent is almost inevitably lower than the current market value in the circumstances in which it will come before the court. What one would like to know—at any rate, if this matter is to remain in the Bill—is why the court should have this regard. Is it supposed to take into account special hardship for the tenant if he says that he cannot afford, during the interim period, to pay a higher rent than he has been paying before? He has of course the right to refuse to take the new tenancy on the terms which the court thinks fit if he finds the rent too high. It may be that this is what the noble and learned Lord has in mind. I think we need an explanation and, since there is this provision pegging the interim rent to a year-to-year basis rather than a long-term one, it seems to me that there is concession enough here. This Amendment would simplify the matter, would take out another matter of dispute on the interim rent valuation in the court and probably not do any harm to either side —which is what I wish to ensure. I beg to move.
THE LORD CHANCELLOR: I know the difficulties of the noble Viscount and I am not complaining in any way at all, but the Second Reading was on March 27 and all these Amendments were put down in the course of yesterday afternoon, though I think one Schedule appeared only this morning. While I am not complaining, I may say that I had to leave the very interesting debate in your Lordships' House yesterday to change and go to Windsor Castle, from which I got back at a quarter past one this morning; I have had a Cabinet meeting all the morning, and therefore if I am more
556
incoherent than usual I hope that the Committee will understand.
I hope to be able to meet a number of the points which have been raised by the noble Viscount's Amendments, but not, I think, this one; though, as I understand it, he really wants only an explanation. The reference to current rent was deliberately inserted by the Law Commission with a view to lowering the level of the interim rent. It is designed to introduce a discretionary element which will make it easier for the court to fix an interim rent without recourse to expert evidence and so assist in reducing the expense of the proceedings. In so far as the interim rent will not usually be the full market rent it may also discourage applications which always add to the tasks of the court and the expense of the parties in cases where the difference between the current rent and the market rent is not very great.
Another reason for resisting the Amendment is that under Section 36(2) the tenant has a right to decline to accept a new tenancy where he cannot afford to pay the rent. He has no such right in respect of the interim rent fixed under the new clause, nor would it be possible to give it to him. As the noble Viscount rightly said, this is a clause which is intended to be in the landlord's interest and to the detriment of the tenant, I think absolutely rightly, because it was found—not, I think, in many cases but in some cases—that the tenant was spinning out the proceedings. Under the existing legislation the new rent under the new lease does not become payable until the court has decided the issue; decided that the tenant is entitled to a new lease and at what rent and on what terms the lease is entered into. The object of this clause is therefore to discourage tenants from spinning the matter out, by providing that the landlord can go to the court to ask for an interim rent to be paid. But it was never intended that this should be done upon valuers being called on both sides.
If a landlord thinks that a tenant is likely to delay the proceedings he can apply at once for an interim rent, probably before either of them has instructed valuers, and it was, and is intended that the court should take a rough and ready view. It sees what is the existing rent and what sort of figures are

557
going to be argued upon as the market rent. If I say that it takes a "pot shot", that is perhaps putting it rather too colloquially; but it is intended that these should be simple proceedings. If, literally, the court could not look at the existing rent, it might fix a rent which was lower than the existing one. I do not see why it should not take the existing rent into account. It sees what the tenant is paying at the moment; it sees the areas of dispute over the market rent and fixes something between the two which it thinks would be reasonable as an interim rent. For those reasons I suggest to the Committee that the new subsection is properly drawn and is intended to achieve what the Law Commission say.
On page 27 of their Report the Law Commission say:
"The purpose of this sub-clause is to provide for a `fair' rent and to remove any incentive for the tenant to prolong the proceedings"—
and so on. Then they say:
"The fact that regard must be had to the rent under the present tenancy and that the fair rent must be fixed as on a yearly tenancy may be expected to produce a lower figure than the full rent which will eventually be fixed for the new tenancy, if any. It is for the landlord to invoke this position if he thinks fit. Unless the present rent is substantially below the current rental value, it may not benefit him to do so."
I hope, therefore, with that explanation, that the noble Viscount will be prepared to withdraw his Amendment.
VISCOUNT COLVILLE OF CULROSS: I am grateful to the noble and learned Lord and I think that the point he makes about the lack of necessity to call valuers at this stage is one of great importance. It is obviously sensible that you should not get into a large valuation dispute on this interim rent. The difficulties that arise on valuation on the fixing of the final rent are often formidable and go on for days, and one certainly does not want to have that on the interim basis.
I wonder, however, whether the court is having its attention drawn to all the things that are relevant to make its "pot shot" or rough and ready estimate. The old rent may have been fixed a very long time ago, or a substantial period ago, and one of the matters which would seem to me to be at any rate of interest to the court, when it is, seeking to fix a rent on a year-to-year basis for the interim
558
period, is the valuation list; because unless that has got very much out of date it ought to have the rent fixed on a year to year basis on the statutory hypothesis for rating it is true, but at any rate it would be of some good. It would therefore be the very thing that the court would like to look at.
I do not know what the effect would be—whether in fact the valuation officers do fix a figure under the statutory hypothesis which is much lower than the market figure in some of these cases. However, it might be worth pursuing, because if one wanted to give the court a rough and ready reckoner it is perhaps as well to have something other than the old out-of-date rent, something much more up-to-date for it to look at. I would therefore commend the noble and learned Lord to consider that point and to see whether there is anything in it. Meanwhile, I think his explanation is otherwise satisfactory. Certainly regarding the purpose of this provision it is satisfactory to me. For the moment I should like to consider the matter and at this stage I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [Termination of sub-tenancy by head landlord]:
3.28 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 2:
Page 3, line 13, after ("section") insert ("or the tenant has requested a new tenancy under the next following section")
The noble Viscount said: This also is not a very large point. I apologise to the noble and learned Lord the Lord Chancellor for the lateness of these Amendments, but I myself have been receiving advice and that has not come in very quickly either. A new subsection is being added to Section 25 of the Act by Clause 4 of this Bill, and I would commend my Keeling Schedule to the Committee so that your Lordships can see the context of this matter. It cannot be seen from the Law Commission's Report because they do not, I think, print this particular section—yes, I see now that they do, but they do not print the next one. The position is that the landlord is being put into an immediate relationship with the sub-tenant of his tenant

559
where he has given notice to his tenant to try to terminate the tenant's interest.
What will have happened is that the landlord has let the property, a business property, to a tenant, and very probably that tenant has sub-let part of it to a sub-tenant. In the normal course of events, as the law stands at the moment, the landlord is in no direct contractual relationship with the sub-tenant and so he can get at the position only through the tenant. He cannot serve the notice on the sub-tenant as well so that the whole matter may be dealt with at the same time. This is being put right by the new subsection (7) in Clause 4, but the converse position is not covered. Under the existing Act of 1954 the landlord can give notice to quit to the tenant; but the tenant can also, under Section 26, request a new tenancy from the landlord. It may not happen so often, but the possibility is there, and I think that it should be provided for.
That situation is not covered by the new subsection (7). If instead of the initiative coming from the landlord it comes from the tenant, and the tenant asks for the new tenancy, the landlord is still in the old position, which applies now in every case, whereby he cannot get into any direct relationship with the tenant's sub-tenant. The matter would have to go to court, as I understand it, simply as an application contested between the tenant and the landlord. If the landlord succeeded in resisting the tenant's request for a new tenancy, he would then have to start all over again with the sub-tenant. That is exactly what the new subsection (7) is intended to avoid where the landlord starts the process. I suggest to the noble and learned Lord that for the sake of neatness and good common sense it ought to be applied the other way round as well, so that there is a direct relationship at whichever end the matter starts. It is with that intention—although I am perfectly prepared to be told that I have not got the drafting right—that I put down this Amendment.
THE LORD CHANCELLOR: There is a point here which is already receiving the consideration of the Law Commission. Clause 4 is designed to enable a landlord who is terminating the business tenancy of his tenant at the same
560
time to terminate a business sub-tenancy of part of the premises. The Amendment would enable him to do so not only where he has himself terminated the mesne landlord's tenancy but also where the mesne landlord's tenancy is coming to an end by effluxion of time but the mesne landlord has served a request for a renewal. In principle, it seems right that the landlord should be able to do so where he is intending in any event to bring the mesne landlord's tenancy to an end by countering the mesne landlord's request by a notice refusing him a fresh tenancy. At present he cannot do so because Section 26(4) of the 1954 Act prevents him from giving any notice to terminate the current tenancy after he has received a request for a new tenancy and Clause 4 does not help. The noble Viscount's Amendment, however, is too wide. It would operate even where the mesne tenant is certain to obtain a fresh tenancy, and could result in the head landlord being able to terminate a sub-tenancy and possibly negotiate the terms of a fresh lease with the sub-tenant at a time when the premises are let to and will continue to be let to the mesne landlord. The point is being sympathetically considered by the Law Commission. There are serious technical difficulties, but if a means can be found to meet this situation I would undertake to put down an Amendment at a later stage or in another place.
VISCOUNT COLVILLE OF CULROSS: No doubt the Committee will find that answer very satisfactory, but there is one thing I should like to say to the noble and learned Lord. We have here an opportunity to amend Part II of the Landlord and Tenant Act 1954. I do not suppose we shall get an opportunity again for quite a long time, and if we have a point that ought to be covered it is essential that it should be done in this Bill. It does not in the least matter whether it is done in this House or in another place so long as the bus is not missed and we do not find that there will have to be further amending legislation at some other time. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 agreed to.
Clause 6 [Exclusion of provisions of Part II of the Act of 1954 by authorised agreement]:
3.33 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 3:
Page 4, line 17, leave out ("and") and insert ("or").
The noble Viscount said: I beg to move Amendment No. 3. This may be a point which is so minor as to be almost nonexistent, but whereas most of the variations from the Law Commission's recommendations have been explained, this particular one has not; and in their drafting I do not think that they make quite the same provision. I should have thought that the new provision is in the alternative and not bound together and that in this case "or" is a more suitable word than "and". If the noble and learned Lord convinces me that "and" is right, I do not suppose that it will be the end of the world. But I thought that these might be circumstances which were not likely to occur at the same time and that one would want to divide them up rather than join them together.
THE LORD CHANCELLOR: This Amendment, of course, is entirely a point of drafting. My first impression was that the noble Viscount was right, but the draftsman has persuaded me that this is not so.
Perhaps I had better repeat what he said. It is apparently intended to emphasise that the powers of the court to authorise agreements under paragraphs (a) and (b) of the new subsection (4) of Section 38 are separate. The word "and" does not have the effect of requiring the court to exercise both powers, since it is a condition of the exercise of each power that it should be preceded by a joint application of the parties concerned. Insertion of the word "or" would suggest that the powers conferred by paragraphs (a) and (b) are alternative powers at the court's disposal on any application. In fact, in cases where the application is made under paragraph (a) the order must be made in accordance with that paragraph; and, if it is made under paragraph (b), the order must be made under that paragraph. The new subsection lists powers, and grammatically
562
it is right to use "and". I do net suppose that the heavens will fall whatever happens but that is the advice I have received, which I feel I ought to accept.
VISCOUNT COLVILLE OF CULROSS: I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 6 shall stand part of the Bill?
VISCOUNT COLVILLE OF CULROSS: I should like to take this opportunity, since the points I made on Second Reading were answered by the noble and learned Lord very fully and most courteously by letter, to deal with a point in Clause 6 which he made to me and which perhaps he would be so kind as to confirm. I asked what the functions of the court would be under this clause, since it appears that applications will be joint, both parties being in agreement, and on the face of it one would think that the court was simply being used to rubber stamp what had already been agreed. This is a rather disheartening thing for the court, and not perhaps a very useful function.
The noble and learned Lord told me that he thought the main function c f the court would be to ensure that the consent of the parties was genuine and had been arrived at freely. It might want to know what advice the parties had sought and received, and then to see that the terms of the agreement were prima facie in the interests of both of them. He pointed out, as the Law Commission do, that under the Housing Act 1961 there are similar cases in which the court has to look at and approve agreements. It might be of use to practitioners, and even to county court judges, if they knew what the Government had in mind in bringing forward this particular provision. I do not think it is very clear in the Law Commission Report, and if that indeed is what the noble and learned Lord thinks, it might be useful if he could confirm it now.
THE LORD CHANCELLOR: Yes: I am happy to confirm what I told the noble Viscount is the intended object of this clause, so that the Committee will know exactly what is in mind.
Clause 6 agreed to.
Clause 7 [Grant of new tenancy in some cases where section 30(1)(f) applies]:
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 4:
Page 4, line 44, after ("of") insert ("any part of").
The noble Viscount said: This is an obscure point, but again one which I raised on Second Reading and on which the noble and learned Lord was kind enough to answer me. It is clear from the Law Commission Report that they are seeking a medium course in relation to the sort of case where a landlord's objection to giving a new tenancy is on the ground of Section 30(1)(f) of the 1954 Act, where he says that he intends to demolish or reconstruct the premises or a substantial part of them, or to carry out substantial work on the holding, and could not reasonably do so without obtaining possession of the holding. The position has emerged in the courts that where a landlord wants to obtain possession of part of the holding only if he is to reconstruct that part, nevertheless the courts are not allowed to regrant to the tenant a new tenancy of part, allowing the landlord only to reconstruct the other part, even though both parties would not be averse to that course taking place if the powers were there. The clause in the Bill allows this to happen.
It appears that two things happen here: that simply access and facilities are given, and that is all the landlord should reasonably want; or, alternatively, there is a specific provision whereby the tenant can be given a new tenancy in regard to part of the tenancy. The Law Commission equally have rejected another proposition, although I think that others may not agree with them on this. It appears that this is a slightly controversial matter. I think that I would agree with the Law Commission that where the property is going to be wholly reconstructed the tenant ought not to have an opportunity to come back at the end of the reconstruction period and get a tenancy of what will be, in effect, a completely new building. That is not intended to happen, as I understand it, either by the Law Commission or, since this is their drafting, in the Bill. Nevertheless, it seems to me that the wording of this clause is a little wide.
The noble and learned Lord invited me, if I was worried about it, to see what
564
I could do by way of amendment, and he said that he would consider anything that I put down. I do not think it is the easiest point in the world, and I found it an extremely difficult thing to do. I would, if I may, put the point back to the noble and learned Lord in this way. It seems that I am not alone in thinking that an awkward tenant could say to the court under Section 31A (a) (this is the first paragraph in the inserted section in the 1954 Act) that he is perfectly prepared to give the landlord facilities which would, in effect, enable him to rebuild the whole of the building; he could retain possession in some notional form, by keeping some stores in the basement or something of that sort, and he would be able to present to the court a case on the facts which would allow to happen what the Law Commission and the Bill propose should not happen. He will be able to make a nuisance of himself in this way.
It may be that the courts would eventually hold that possession in this context would not be satisfied, if he simply had something in the basement, and that his scheme whereby access facilities would be granted for a reconstruction was not in the spirit of the Act. But I do foresee litigation, particularly if there is an awkward tenant who takes the view, contrary to mine, that the new Bill ought to have given him the right to have a rebuilt new building and a tenancy of it. There seems to be an opportunity here that might be taken by some people which could waste a great deal of time, because of the argument about what access, what facilities, how much of the premises would be retained by the tenant, whether the landlord could do this or that without getting possession of a passage or a staircase, and a tremendous amount of argument going up to the Court of Appeal on a point of law, and possibly coming to your Lordships' House later in an appellate capacity.
I suggest that this is a point, not where we differ in any way, but where a little more restrictive wording might be apposite, so as to make it quite clear that this paragraph is not intended to allow the tenant to get back by a side-wind into a substantially new building after it has been rebuilt. It is in order to ask once more whether those who are so much better at drafting than I am will look at

565
it, to see whether they can do something about it, that I have put this Amendment down. I know it does not have the right effect, but it gives me the opportunity to raise the point, and I should be grateful if the noble and learned Lord would comment upon it. I beg to move.
THE LORD CHANCELLOR: I will certainly look at this again and discuss it with the noble Viscount, but I do not think this Amendment would achieve anything. Under paragraph (a) of the new Section 31A a landlord will not be able to obtain possession for purposes of reconstruction if a tenant agrees to make facilities for the work of reconstruction available and the landlord, given those facilities, could reasonably do the work without obtaining possession of the premises. The Amendment would alter this only to say that the landlord could reasonably carry out the work without obtaining possession of any part of the holding. In the context of the clause this Amendment does not seem to achieve any purpose. Section 30(1)(f) of the Act gives the landlord a right to possession where he cannot do the work without obtaining possession of the holding. For this purpose the holding is indivisible. If the landlord needs to take possession of any part of the premises in order to do his work, then he needs possession of "the holding". The addition of any part of the holding is therefore otiose. Where the landlord's requirements can be sufficiently met by possession of part of the holding the tenant's remedy lies under paragraph (b) of the new Section 31A, which enables him to seek a new tenancy of other parts of the holding of which the landlord does not require possession.
I thought the noble Viscount probably had in mind the point that he raised on Second Reading, but the Amendment would not achieve this objective. However, as I have said, I am quite prepared to consider the point further with him.
VISCOUNT COLVILLE OF CULROSS: As I said, I found this an extremly difficult point, but there are those who are more skilled than I am and who have considered it over a longer period. It may be that they will be able to think up something suitable. I am very grateful for the offer of the noble and learned
566
Viscount. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Clause 8 agreed to.
Clause 9 [Saving for tenant temporarily out of occupation]:
On Question, Whether Clause 9 shall stand part of the Bill?
3.46 p.m.
VISCOUNT COLVILLE OF CULROSS: I should like to raise a point on Clause 9. This is another of the Second Reading subjects. The noble and learned Lord told me that he thought it might be; useful in a few cases, but probably would not be of very wide application. If I may respectfully say so, there is rather more wrong with it than that. The Law Commission on page 14 of their Report set out the problem, and they refer to the two cases of Caplan v. Caplan. At the beginning of paragraph 45 they say:
"We consider that the position should be clarified by specifying what is required to satisfy the condition of occupation."
The point is that there has been some dispute about the position of the tenant when he is out of occupation of the premises of which he is seeking a new tenancy, either at the date when he originally makes the application to the county court or any other court, or some time after that, but before the court finally hears the case, or at the time when the court hears the case.
Clause 9, in its new Section 38A put into the 1954 Act, says that it is all right if the tenant is not in occupation between the time when he makes the application and the date when the court actually deals with the matter at the hearing. That is my understanding of it. But that is not the problem that the Law Commission set about solving. I do not think that anything in Clause 38A really helps. They go on to say this at the end of paragraph 45:
"We consider that the Act should specify what conditions must be satisfied in respect of occupation; and those conditions should be that the tenant is in occupation of the premises for the purpose of his business at the time of the order as well as at the time of the application, the intermediate period being irrelevant."

567
That is, broadly speaking, what is put in the clause. The second case of Caplan v. Caplan came before Mr. Justice Cross, and I should like to tell your Lordships what he said about it. He said:
"Take this example. Suppose that a tenant in occupation for business purposes applies for a new tenancy. The landlords oppose the application and succeed in the court of first instance. The tenant then lodges notice of appeal but his solicitors tell him that the chances are not very rosy and it is extremely likely that the landlords will be upheld in their objection and he will at long last have to give up possession. It seems to me to be not unreasonable for a tenant in those circumstances to say: `Well, I must secure my way of retreat. I must make sure: I must preserve the good will of these premises, and I must give continuity of employment to my staff. I cannot risk staying on here and being suddenly turned out. I am going to take some other premises, to which I will transfer temporarily—possibly for ever, but possibly only temporarily—my staff and my stock.'"
I interject here to say that as I understand it that is precisely the position that this new clause is intended to provide for and allow to happen. I go on with the quotation:
"'Those premises '"—
that is the new ones—
"'are admittedly not as nice as the ones from which I am being turned out. If I succeed, as I hope, in this appeal, I will go back. Of course, if I fail, I cannot go back and I must go on in the new premises.' I think that on those facts"—
the facts are that the tenant went—
"I would be very loth to hold that the physical arrangement of occupation disentitled or deprived the tenant of his rights under the Act, and a fortiori I think that would be so if he left a quantity of stock on the premises."
Mr. Justice Cross says that in those circumstances if the tenant actually went altogether, and even more so if he left his stock, in both cases with the intention of returning if he got the new tenancy from the Court of Appeal, then he would for the purposes of the old law, under the existing 1954 Act as it stands, still be in occupation. I do not think that the definition of "occupation" or "sufficient occupation" has been clarified for the purposes of this legislation.
If Mr. Justice Cross is right—and I have the greatest possible hesitation in suggesting anything to the contrary—then there is no need for this because the sort of situation that is being envisaged—where the tenant wants, to safeguard his business, to find a "bolt-hole", an
568
alternative premises to which to go in case he loses his application in the county court or on appeal—is already covered. He does not lose his rights, and the courts have already said so. In those circumstances, and in the light of the fact that the noble and learned Lord himself said to me that he did not think this would be of very wide application, is it not merely going to complicate the issue? The law has been sorted out, at any rate in the court of first instance; and I should have thought that that decision of the Chancery Division was probably satisfactory and all that anybody sought to achieve in putting in Clause 9 of this Bill. I would therefore ask the noble and learned Lord to consider whether this cannot be left out altogether, because it does not do what the Law Commission suggested should be done.
THE LORD CHANCELLOR: With respect, I should have thought that it did. The Law Commission's Report was made after seeing the two Caplan cases and referring to them, and they then consider what the various alternatives are. They say:
"It is unreasonable, we think, to expect a business tenant to wait in effect until the last three months of his current tenancy before he looks for other premises, and unrealistic to suppose that he will necessarily find suitable accommodation in that time. On the other hand, if at the date of the hearing he has in reality moved his business to new premises, he should not be entitled to a new tenancy which in all probability he would assign immediately. We do not think, however, that it would be appropriate to introduce a subjective test in respect of the tenant's intentions in the event of a new tenancy being granted. Nor do we think it would be a satisfactory solution of the difficulty if, as has been suggested, the current tenancy were to be continued for six months instead of three months after final disposal of the application; for where there is no difficulty in finding new premises, the tenant would normally wish to move as soon as possible, and it would be onerous upon him if the tenancy were continued for another six months. Alternatively, it has been suggested, the court could be given power to extend the period in section 64; but we think it inadvisable to introduce into the provisions of the Act relating to time any element of uncertainty. We consider that the Act should specify what conditions must be satisfied in respect of occupation; and those conditions should be that the tenant is in occupation of the premises for the purpose of his business at the time of the order as well as at the time of the application, the intermediate period being irrelevant."
That is precisely what the clause does. I do not know whether it will apply in

569
many cases. One can see that it is not easy to provide the right solution which will achieve the right result in what may be a very wide variety of circumstances. I am certainly willing to consider it again. The clause really does exactly what the Law Commission recommend. Whether there should be some further definition of what "occupation" means is of course another matter, and certainly I am quite prepared to consider that.
VISCOUNT COLVILLE OF CULROSS: Before we leave this matter, may I make this suggestion to the noble and learned Lord? He read out this sentence:
"We do not think, however, that it would be appropriate to introduce a subjective test in respect of the tenant's intentions …".
It is not a question of introducing it; it is here already. It is quite inherent, I think, in the judgment in the second Caplan v. Caplan case that the intention of the tenant to come back, whether or not he leaves his stock—the circumstances in which he thought he had better play safe and go to the other place, at any rate on a temporary basis—is exactly what is intended to go to the question of occupation. That is what the Law Commission say should not happen. Therefore it seems to me that, very far from making it more plain, we have a Report here which throws doubt upon the appropriateness of the subjective test, but simply uses in the new section of the Act the word "occupation", which must be defined, presumably, in the terms that the court has already decided "occupation" should be defined. Therefore, I think that confusion is going to be worse confounded, and. I should be very grateful if the noble and learned Lord would look at that point again.
Clause 9 agreed to.
3.55 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 5:
After Clause 9 insert the following new clause:
Saving for members of a group of Companies for the purposes of section 30(2)
('. After subsection (3) of section 42 of the Act of 1954 there shall be inserted the following subsection:—
"(4) The transmission of the landlord's interest from one member of a group to another member shall not, for the purposes of subsection (2) of section 30 of this Act, be taken to be the purchase or creation of that interest."')
The noble Viscount said: This is a point which I think bears short consideration. Your Lordships will see that in Section 42 of the Act of 1954—and again I would refer your Lordships to my invaluable Keeling Schedule, as I hope your Lordships will find it to be, where I set out that clause and there is no necessity to look at any other clause—there are various provisions dealing with groups of companies. Under subsection (2), where there is a tenancy of premises which is held by one member of a 3roup of companies, if the group is then re-organised arid the tenancy goes into the hands of another member of the group, that does not affect in any way the rights of the tenant under this particular protective set of provisions. In other words, they are really treated as the same tenant for the purposes of the 1954 Act, Part II.
The same does not apply if the landlord is a member of a group of companies. Although this may not by any means always have any great effect, it is relevant when one looks at Section 30(2), which says:
"The landlord shall not he entitled so oppose an application on the ground specified in paragraph (g)"—
which is that he wants it for himself or partly for himself—if, briefly, he has acquired the property within the last live years. As I understand the situation, if there were a group of companies who owned properties which were let to business tenants, and the group of companies wished to re-organise themselves in a perfectly proper way, which had nothing whatever to do with this legislation, it could be that they would, for the sake of some internal efficiency or some matter of that sort, wish to transfer the freehold of these let business premises from one company to another; but if they did not get the protection with which my Amendment provides them they would, by doing that, I think, under subsection (2) of Section 30, deprive themselves of certain rights which they would otherwise have under Section 30(1)(g).
I can see no possible object in distinguishing between groups of companies as landlords and groups of companies as tenants for this purpose. It would seem to me to make for flexibility of business without in any way harming the interest of the tenant in trying to oppose an application to get him out on the ground that the landlord wished to occupy the

571
premises for himself, if the group of companies were to be considered as one, both when it is landlord and when it is tenant. It is for that purpose that I put down this Amendment, which I hope will commend itself to the Committee as being pure common sense and doing no harm to anyone. I beg to move.
THE LORD CHANCELLOR: This is a perfectly good point, which had already been reported to the Law Commission and which they are in fact considering. I will not re-state the point because the noble Viscount has explained it with his usual clarity. It is simply a question of getting the Amendment right. I am told that in some respects his Amendment is defective, but if he will withdraw it I have no doubt that we can agree an Amendment for a later stage of the Bill.
VISCOUNT COLVILLE OF CULROSS: I am very much obliged to the noble and learned Lord. His reply is a surprise to me, and an agreeable one. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clauses 10 to 12 agreed to.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 6:
After Clause 12 insert the following new clause:
Amendment of Part II of Landlord and Tenant Act 1954
". In accordance with the provisions of this Part of this Act, Part II of the Landlord and Tenant Act 1954, as respects cases to which it applies as amended by this Part of tris Act, shall have effect as it is set out in Schedule (Part II of the Landlord and Tenant Act 1954 Reprinted with Amendments) to this Act with the Amendments made by the Agriculture Act 1958, the Finance Act 1959, the Rent Act 1968 and this Part of this Act (and the omission of repealed provisions)."
The noble Viscount said: This Amendment goes with a truly fabulous piece of printing which stands in my name as Amendment No. 11. It was a subject which was discussed on Second Reading, and I think I had certain support in the House for the view that, with the number of Amendments that are likely to be, or indeed will have been, made by this Bill to Part II of the Landlord and Tenant Act—and now we are promised two more —there would be something to be said
572
for reprinting the whole of that Part of the Act as it is amended.
To this, certain objections have been taken because Part II is not entirely self-contained since some other Parts of that Act have to be read with it. If after this Bill is passed one wanted to look up to see what the law is going to be, or is, at that time, as I understand it would be necessary to refer to the Bill and the Law Commission's Report because that is the only place where the text is set out in full. One might want the Halsbury amended texts, because there have been those other Amendments in the Rent Act, in the Finance Act 1959 and in the Agriculture Act 1958—although that would probably be in the Law Commission Report. You would also want the old 1954 Act, because the Law Commission's Keeling Schedule reprints only those sections of the 1954 Act which have been amended. As I have already taken the opportunity to point out to the Committee, when one is considering this matter even in this House on this short Committee stage, one wants to refer to parts of the Act which are not printed anywhere except in my Schedule.
It is not only Members of this Committee who have been good enough to support me; I have had some support in a letter from the Law Society, who say that if it is reprinted in this way, with all the Amendments which have been made since 1954, it will be an advantage to practitioners as well. They are the people who will want to use this a great deal. But they are not by any means the only people, because as was said, I think, on the Second Reading debate, one of the great merits of the 1954 Act has been that it has worked so well that a lot of cases have never had to be disputed at all but have simply been settled between landlords and tenants, with the advice of their valuers on whatever the new rent ought to be. I do not believe that most businessmen are in possession of large quantities of up-to-date legal text books on the law of landlord and tenant; I do not believe they have the two volumes of Woodfall, or Mr. Justice Megarry's book. I do not think they usually line their bookshelves even with the annual Halsbury Statutes, let alone the "noter-up" in which the amended texts occur.
I should have thought that it really was the duty of Parliament, when we are making major Amendments to an extremely widely used piece of legislation, that rather than leave it to the admirable work of public enterprise, we should ourselves include a Schedule in the Bill so that from the moment it comes into force —before the text books come out but still useful thereafter—we have the whole text set out as amended. Then people can see what we are doing. Surely they will then say that Parliament is at least taking a little trouble to try to make the law comprehensible to the man in the street and available to him, without having to go into a library or purchase extremely expensive text books, to have explained to him in a form which he can understand it, the text alone, let alone what it means.
Here it is printed, and I hope that the Committee will consider it a good thing to put it into the Bill. My introductory clause is drawn from this source and from that. It may or may not be the right way to introduce a Keeling Schedule, but I hope that it will serve its purpose. I would very much commend to the Committee this method of dealing with the matter, particularly in view of the fact that the noble and learned Lord the Lord Chancellor is about to do the same for his Amendment which is next on the Marshalled List. I beg to move.
THE LORD CHANCELLOR: This is frankly a point which I should have liked to have more time to consider, because as the noble Viscount's Schedule consists of about 18 pages, naturally it took the printers some time to produce and it was not available until this morning. I have been in Cabinet all the morning and then at certain other meetings which started at 1.45 p.m., so I have not had much time to think about it. I am reluctant to oppose any Keeling Schedule because I am a great Keeling Schedule enthusiast. However. I think I must report what I am told about this.
It is, of course, very long, and the relevant sections of the 1954 Act are already set out with the amendments recommended by the Law Commission in Appendix 2 to their Report. It is true that a few further alterations have been made to their recommendations but
574
Members of the House should have no difficulty in taking account of this. The only justification for the Schedule would therefore be to assist the professsions after the Bill is enacted. But Lord Colville's Schedule is likely to do more harm than good. Part II of the 1954 Act is not self-contained, and of course it is only Part II which he is setting out in the Keeling Schedule. The provisions governing chains of landlords of business premises, which are important to an understanding of Clause 4 of the Bill, and even more so of the noble Viscount's proposed Amendment No, 2, are in the Schedule 6.
The provisions concerning jurisdiction and particularly those relating to interim continuation of tenancies are in Part IV. Without the latter the scope and effect of Clause 3 is hardly intelligible. Provisions for compensation for possession obtained by misrepresentation, numerous special provisions concerning the rights of Government Departments as landlords or tenants and some definitions of terms used in Part II all appear in Part IV. It would be doing the profession a disservice if, through the reprinting oil. Part II as amended, any members were misled into believing that the Schedule contained all the law relevant to business tenancies. The wording of the Amendment, which says that Part II of the Act as respects the cases to which it applies shall have effect as set out in the Schedule, is particularly prone to mislead in this way. It would not even be satisfactory to schedule Parts II and IV of the 1954 Act because Part IV also contains many provisions concerning Part I and ought not to be divorced from that Part.
It is also questionable whether as a matter of general policy large parts of, or whole Acts, should be scheduled to amending legislation. The publication of amended Acts is best done by way of consolidating Acts. It is a matter for speculation how far the professions rely on the texts of Statutes in a complex field like business tenancies where no reliable conclusions can be drawn without reference to case law interpretations. Probably practitioners rely far more on text books. The scheduling of amended Acts in Keeling Schedules would also set an ominous precedent. The actual volume of Statutes last year already reached an all time record in both size and cost (over 2,500 pages, costing

575
£11 10s. 0d.). It is at least arguable that many purchasers of the Statutes who may not be particularly concerned with the 1954 Act would prefer legislation confined to essentials.
Perhaps the noble Viscount will take all that into account. As I have said, I have had little time to think about it. I have always conceived that the primary purpose of a Keeling Schedule is to help the legislators because then, instead of having to look backwards and forwards in existing Acts to see exactly what has been left out and what has been put in, they have only to look at the Schedule where they see that the things that have been put in appear in bold type and the position is plain.
In drafting a Keeling Schedule, I have never yet persuaded the draftsmen—and I have never really understood why—to put in italics what has been left out. They take strong exception to that, although I think it would be an improvement. Its main purpose is to make it easier for Members of Parliament so that they do not have to look backwards and forwards between the three existing Acts and the present Bill in order to see exactly what the effect is of leaving out certain words and putting in others. In a sense we hardly need that here because of the Report of the Law Commission and because of the Schedule already contained in the Law Commission's Report; although when it comes to the rewriting of Section 84 in the Amendment which I am coming to, it seemed to me that a Keeling Schedule would be of assistance. As I have said, I am somewhat reluctant to oppose any Keeling Schedule, but I daresay the noble Viscount would like to consider the points to which I have referred. I should like further time to think about it myself, if he would withdraw his Amendment now.
VISCOUNT COLVILLE OF CULROSS: Of course I do not want to rush the noble and learned Lord in any way, and I will concede that there is something in what he says about increasing the size of the Statute Book. On the whole I do not think my Party have been responsible for that over the last year or so, but nevertheless perhaps it is better to argue about that on another occasion. Where I think the noble and learned Lord, with
576
the greatest respect to him, is quite wrong is in saying that Keeling Schedules are of use only, or mainly, to legislators.
During the last Session the Town and Country Planning Act was widely amended, and among the things that were done was a wide amendment of the purchase notice procedure, which is highly technical and exceedingly difficult to follow. A certain amount of rewriting was done, and I followed it when I was dealing with the Bill on Third Reading in this House. Since then I have had to consider this professionally. I think it has now come out, but for quite a long time there was no source in which the ordinary practitioner who had to advise clients could find a proper reprint of this material. It just was not available. One had the new Act, which was not at that stage even annotated, and then one had to put it together in one's encyclopedia or reference book, with the bits of the old Act, and one scratched this out and put other bits in for reference, and added little bits on slips of paper, which were stuck on and flapped over the top. By the time all this was done and one had put it all in the wrong place and covered oneself with glue one was much further in the dark than one was in the first place. If you have a Keeling Schedule you do not have any of that. The Bill is passed into law; there printed with it is the law as it now stands.
I entirely accept that if there is something wrong with my reference to the cases to which this Part of the 1954 Act, as amended by this Part of the Bill, in the substantive clause, applies, that can be changed. I took that from one of the noble and learned Lord's own Acts passed in 1966, but perhaps it is not suitable here. It is not simply for Members of this House and another place, or indeed for the practitioners, that this is brought in: it is introduced for members of the public who want to see this up to date. You only want two books, the 1954 Act (because there has not been much change to the rest of that) and my Keeling Schedule, and you have then got it all together. It would require a lot of to-ing and fro-ing and fitting the clauses of this Bill into the 1954 Act otherwise to get any clear picture.
I hope that the noble and learned Lord will take this back and add the power of

577
his eloquence to what has been said already, in the hope that perhaps after we have left out one set of parentheses and two little figures which were photographed from the Law Commission's Report which I did not mean to be included here, it will be possible to have this in the Bill. Is that an information which the noble and learned Lord wishes to pursue at this stage?
THE LORD CHANCELLOR: There may be a case for an extra-statutory publication. if the 1954 Act is amended when the Bill has been passed, it can be considered for discussion with the Stationery Office.
LORD WILBERFORCE: May I add one small point to what the noble Viscount said, as one who supported the Keeling Amendment on Second Reading? I think one has also to take into account who has benefited by this type of schedule, and it is the courts, and particularly the county courts. When one is faced with a question of construction one cannot face a judge with a textbook. It greatly helps those who have to construe these not very simple enactments if all they have to do is turn up a consolidated document like this.
Of course there is some validity in the point that Part II is not self-contained and one has to look out for other references, definitions or clauses in the rest of the Act, but it is a very minor technical problem which can easily be met, as the noble and learned Lord has met it in relation to Section 84, by saying that it takes effect subject to any other enactments or anything else in this Act which has to do with the matter. To say that is not to diminish in any way the usefulness of a self-contained Part II. You take out the 1954 volume of the Statutes and look at the other parts of the Act so far as they bear on the matter. I hope the noble and learned Lord will look at it again.
THE LORD CHANCELLOR: I will certainly.
VISCOUNT COLVILLE OF CULROSS: At the risk, therefore, of having to ask the printer to print this Amendment again for the Report stage, I temporarily beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clauses 13 to 21 agreed to.
Clause 22 [Compensation in certain cases for loss due to undisclosed lane charges]:
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 7:
Page 11, line 28, after ("charge") insert ("and had previously searched in the relevant register or index in respect of the relevant table").
The noble and learned Viscount said: On account of the execrable nature of my handwriting, the last word in this Amendment should not be "table" so much as "title", but I do not think it very much matters, because I merely wanted an opportunity to invoke from the noble and learned Lord the Lord Chancellor an explanation of the point I made about this matter. It is, of course, a different subject altogether. It relates to compensation for those who find, among other things, that because the search for a root of title is now to be statutorily shorter, there may be some charge on the land they buy of which they did not know anything and could not reasonably be expected to know anything, because, also, it was not under the right name in the register. That relates to the way in which the registers are drawn up. not by reference to the land concerned but by reference to the name of the person who put the charge down.
I raised the point that if one was going to get compensation one must have carried out a proper search. It was only an invitation to people to be slovenly in relation to conveyancing if they were to get compensation for something that turned up which they should have found but did not because they did not take the trouble. The noble Lord says that the matter is dealt with by the provisions of Clause 22(i)(c), but I thought it was so important that it ought to be explained for the benefit of practitioners and others who might come across it and might like to consider it while the Bill was before Parliament. I therefore put down an Amendment to give the noble and learned Lord a chance to explain it in public as he has done to me in private. I beg to move.
THE LORD CHANCELLOR: This matter is already covered and the Amendment is unnecessary. As the clause stands, no claim can be made in respect of a charge registered against an estate owner who is a party to any transaction

579
or otherwise connected with any event appearing in the title documents (subsection (1)(c)). It follows that a land charge which would be discovered on a search against the name of any such estate owner cannot in any event give rise to a claim under the clause. It is therefore immaterial whether such a charge has or has not in fact been discovered. The clause gives compensation only in respect of charges which such a search would not reveal. But a purchaser wishing to search the register would not have the means to know about the names of any other persons. He could search the register only by reference to the names appearing from the relevant title documents. There is no reason, therefore, to think that an express obligation to search the register of the kind suggested by the Amendment would lead to the discovery of any land charge in respect of which claim can be made under the clause. If for some extraneous reasons the purchaser in fact has knowledge of the existence of other estate owners (against whom he could search), then he is likely to have knowledge also of the transaction in which they were concerned and accordingly be disqualified from claiming in respect of that transaction by his actual knowledge under subsection (1)(b). The Amendment would add nothing of value to what is already in the clause.
There is also a serious technical objection to the Amendment. The clause applies to compulsory acquisitions by whatever procedure (subsection (9)(c)). Some of these, like acquisitions by a general vesting declaration under the Land Commission Act, take place without any investigation of title. This is clearly contemplated by subsection (10)(b) which refers to the title which a purchaser would hypothetically have been entitled to require. An obligation to investigate title and make searches would make it impossible for acquiring authorities using these expedited acquisition processes ever to make a claim. I hope that with that explanation the noble Viscount will be content.
VISCOUNT COLVILLE OF CULROSS: Yes. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 22 agreed to.
Clauses 23 and 24 agreed to.
4.19 p.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendment No. 8:
After Clause 24 insert the following new clause:

LAW OF PROPERTY BILL [H.L.]

  PART IV RESTRICTIVE COVENANTS
  Powers of Lands Tribunal and court in relation to restrictive covenants affecting land
  25.—(1) In section 84 of the Law of Property Act 1925—

  (a) for the words "The Authority herein after defined" in subsection (1), and for the words "the Authority" wherever else they occur, (which now refer to the Lands Tribunal) there shall be substituted the words "the Lands Tribunal"; and

  (b) there shall be made the further amendments provided for by subsections (2) to (6) below;

  and accordingly section 84 shall have effect as it is set out in Schedule 2 to this Act with the amendments made by section 52(1) of the Landlord and Tenant Act 1954 and by this section (and the omission of repealed provisions), subject however to any other enactments affecting the operation of section 84 and to subsection (8) below.
  (2) In section 84(1)(a) after the word "that" the second time it occurs, there shall be inserted the words "in a case falling within subsection (1A) below", for the words "the reasonable user" there shall be substituted the words "some reasonable user" and the words "without securing practical benefits to other persons" shall be omitted; and after section 84(1) there shall be inserted as new subsections (1A), (1B) and (1C):—
  "(1A) Subsection (1)(a) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of land in any case in which the Lands Tribunal is satisfied that the restriction, in impeding that user, either—

  (a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value to them; or

  (b) is contrary to the public interest;

  and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.
  (1B) In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Lands Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction

  581
  was created or imposed and any other material circumstances.
  (1C) It is hereby declared that the power conferred by this section to modify a restriction includes power to add such further provisions restricting the user of or the building on the land affected as appear to the Lands Tribunal to be reasonable with the relaxation of the existing provisions, and as may be accepted by the applicant; and the Lands Tribunal may accordingly refuse to modify a restriction without some such addition."
  (3) In section 84(2), in the phrase "is affected" in paragraph (a), and in the phrase "is enforceable" in paragraph (b), there shall in each case be inserted after the word "is" the words "or would in any given event be"; and at the end of section 84(2) there shall be added the words:—
  "Neither subsections (7) and (11) of this section nor, unless the contrary is expressed, any later enactment providing for this section not to apply to any restrictions shall affect the operation of this subsection or the operation for purposes of this subsection of any other provisions of this section."
  (4) In section 84(3) in the phrase "any local authority" there shall be inserted after the word "any" the words "government department or".
  (5) After section 84(3) there shall be inserted as a new subsection (3A):—
  "(3A) On an application to the Lands Tribunal under this section the Lands Tribunal shall give any necessary directions as to the persons who are or are not to be admitted (as appearing to be entitled to the benefit of the restriction) to oppose the application, and no appeal shall lie against any such direction; hut rules under the Lands Tribunal Act 1949 shall make provision whereby. in cases in which there arises on such an application (whether or not in connection with the admission of persons to oppose) any such question as is referred to in subsection (2)(a) or (b) of this section, the proceedings on the application can and, if the rules so provide, shall be suspended to enable the decision of the court to be obtained on that question by an application under that subsection, or by means of a case stated by the Lands Tribunal, or otherwise, as may be provided by those rules or by rules of court."
  (6) In section 84(11) after the word "nor" there shall be inserted the words "subject to subsection (11A) below"; and after section 84(11) there shall be inserted as a new subsection (11A):—
  "(11A) Subsection (11) of this section—

  (a) shall exclude the application of this section to a restriction falling within subsection (11)(a), and not created or imposed in connection with the use of any land as an aerodrome, only so long as the restriction is enforceable by or on behalf of the Crown; and

  (b) shall exclude the application of this section to a restriction falling within subsection (11)(b), or created or imposed in
  582
  connection with the use of any land as an aerodrome, only so long as the restriction is enforceable by or on behalf of the Crown or any public or international authority."

  (7) In section 38(3) of the Requisitioned Land and War Works Act 1945 (under which section 84 of the Law of Property Act 1925 does not apply to a covenant obtained under the Defence Acts, so long as the covenant is enforceable on behalf of the Crown) for the words "any covenant obtained under the Defence Acts" there shall be substituted the words "any restriction created or imposed under the Defence Acts or under section 13 (acquisition of land for oil installations) of the Land Powers (Defence) Act 1958", and for the words "the covenant" there shall be substituted the words " the restriction".
  (8) This section applies to restrictions whether subsisting at the time it comes into force or created or imposed thereafter, but—

  (a) the coming into force of any provision of this section other than subsection (5) shall not affect proceedings then pending; and

  (b) subsection (5) shall not come into force until such date as the Lord Chancellor may appoint by order made by statutory instrument, which shall be laid before Parliament after being made."

  The noble and learned Lord said This Amendment is a long one which raises an entirely new question on a new Part of the Bill, so I am afraid I shall have to trouble the Committee with a full explanation of it. It extends and clarifies the jurisdiction of the Lands Tribunal under Section 84 of the Law of Property Act 1925 to modify or discharge restrictive covenants and makes consequential and other minor amendments to Section 84. A new Schedule to be inserted in the Bill as Schedule 2 sets out Section 84 of the 1925 Act as amended by the new Clause 25. The Amendments to Clause 27 and the Title of the Bill are consequential on the clause. The new clause implements, with modifications, the recommendations on the powers of the Lands Tribunal contained in Propositions 9(a) and 11 of the Law Commission's Report on Restrictive Covenants (Law Com. No. 11), enlarges the powers of the court to issue declaratory judgments in accordance with a recommendation in Proposition 10(b) of the Report, and corrects certain anomalies and makes certain improvements in provisions of Section 84 which are not referred to in the Report.
  The present law relating to restrictive covenants and its defects are summarised in paragraphs 7 to 26 of the Law Commission's Report. A restrictive covenant

  583
  may be defined as an agreement made between neighbouring landowners which enables one of them to impose a specific restriction on the use of the other's land and is intended to remain in force between subsequent owners of the relevant land after the parties to the agreement have ceased to own their respective interests in it. Paragraph 15 outlines the jurisdiction conferred by Section 84 on the Lands Tribunal to discharge or modify restrictive covenants and on the High Court to make declarations as to their effect. Paragraphs 20 and 25 criticise the provisions of Section 84 relating to the Lands Tribunal as they have come to be construed, on the ground that they afford insufficient scope to the Tribunal to exercise its jurisdiction, and paragraph 26 suggests that the jurisdiction should be enlarged on the lines indicated in Proposition 9 of the Report.
  Details of the current judicial interpretations of Section 84 are given in the notes to Proposition 9. Broadly, the power to modify or discharge can be exercised on four grounds:

  (i) that the restriction has become obsolete;

  (ii) that the continued existence of the restriction would impede the reasonable user of the land without conferring any practical benefits on any persons;

  (iii) that all concerned have agreed, and

  (iv) that the persons who benefit from the restrictions will not suffer any harm.

  These grounds have been strictly interpreted, so that in practice it is rare for a restriction to be modified or discharged unless it is obsolete or of no value to the persons entitled to enjoy its benefit. In consequence, the development of land is often either frustrated by restrictive covenants or carried out in breach of them. Sometimes excessive sums have to be paid to obtain release from covenants which are reflected in inflated prices charged for the developed land when it comes to be sold.
  Proposition 9 of the Law Commission Report recommends that the Lands Tribunal should have power to modify or discharge a restrictive covenant which is of value to those benefiting from it, if it impedes the reasonable use of the land so as to be contrary to the public
  584
  interest and if money can be adequate compensation for the loss of its benefit. The Proposition also specifies various factors which the Lands Tribunal should consider when exercising its jurisdiction it should be empowered to direct inquiries to be made of Government Departments.
  The Lands Tribunal is hampered in the exercise of its powers by uncertainty as to the extent to which it can decide questions of law. Proposition 11 of the Law Commission Report recommends that whilst substantive legal questions concerning the validity or Enforceability of covenants are to be determined by the court, the Lands Tribunal should be empowered (subject to a right of appeal to the court on points of law) to decide who is to be entitled to be a party to the proceedings in order to object to an application for modification or discharge.
  The declaratory jurisdiction of the court, conferred by subsection (2) of Section 84, is of particular importance because, unlike other declaratory orders of the court, orders made under this provision are, by Section 84 (5) binding on everyone and do not bind merely the parties to the proceedings. They operate in rem. It is recommended in Proposition 10 (b) that the power to make such binding declarations should be exercisable in relation to the future effect of restrictive covenants.
  Besides giving effect to these recommendations of the Law Commission the clause also corrects a few defects in the operation of Section 84 and its application. Obsolete terms or references are brought up to date only where this can be done by a simple substitution. The clause does not seek to achieve any modernisation or general amendment of a more far-reaching kind because that would involve rewriting language which has been the subject of much judicial interpretation and is familiar to the legal and surveyors' professions. An attempt has been made to do so, but it was not welcomed and has been dropped.
  I ought to say a word about the new subsections. Subsection (1) substitutes "the Lands Tribunal" for "the Authority" throughout Section 84 and introduces the substantive Amendments contained in the clause. The subsection also provides that the amended Section 84 is to have effect as set out in Schedule

  585
  2 to the Bill. Paragraph (a) of the subsection substitutes" the Lands Tribunal "for" the Authority " throughout Section 84. Jurisdiction to modify or discharge covenants was in 1925 conferred on "The Authority", meaning the Official Arbitrators appointed for purposes of the Acquisition of Land (Assessment of Compensation) Act 1911. Their jurisdiction was transferred to the Lands Tribunal under the Lands Tribunal Act 1949. Paragraph (b) and the concluding words of the subsection are machinery designed to bring the Amendments to Section 84, and the new Schedule 2, into effect. The concluding words also preserve the effect of existing enactments affecting Section 84, notably enactments which exempt particular types of restriction wholly or partly from the operation of the section (for example, Section 19 (6) of the Land Commission Act 1967, Sections 5 (2) (b) of the Forestry Act 1967).
  Subsection (2) substitutes the words "some reasonable user" for" the reasonable user" in the existing subsection (1)(a) of Section 84 and inserts three new subsections in the section: first, to widen the power of the Lands Tribunal to modify or discharge restrictive covenants; secondly, to specify certain factors which the Tribunal are to take into account in the exercise of these wider powers; and thirdly, to ensure that the Tribunal's power to modify restrictions includes the power to substitute other restrictions. The change of the wording of the existing subsection (1)(a) from" a reasonable user " to some reasonable user" will have a material effect. It will no longer be necessary for a person seeking to have a covenant discharged to show that the restriction impedes all reasonable use of the land, but only that some other use which is also reasonable will be impeded.
  Where it is shown that some reasonable use would be impeded by a restriction, the new subsection (1A) of Section 84 provides additional grounds upon which the Lands Tribunal can discharge or modify that restriction. It may do so if the restriction is either not of substantial value or contrary to the public interest and if money would be adequate compensation for the loss of the benefit. The new subsection implements the recommendation in the first part of paragraph
  586
  (a) of Proposition 9 in the Law Commission's Report. At present restrictions are rarely discharged under the second limb of Section 84(1)(a), partly because the paragraph is interpreted as requiring the Tribunal to be satisfied that the use proposed by the applicant for discharge or modification is the only reasonable use, and partly because it is also necessary to show that the covenant confers no practical benefit (in which case it will usually be obsolete or capable of discharge by agreement and so dischargeable under the remaining provisions of Section 84(1)). Under the new subsection (1A) the Tribunal is enabled to discharge or modify a restriction impeding reasonable user not only where it is of no value, or even of no substantial value, but also where it is of substantial value but its discharge would be in the public interest. The term " public interest "is not defined. It will be left to the Tribunal to hold the right balance between public and private interest where they conflict. In doing so the Tribunal is required to have regard to planning, considerations by the new subsection (1B).
  The new subsection (1B) of Section 84 requires the Lands Tribunal, in determining whether a reasonable user is impeded and in the exercise of its powers under the new subsection (1A), to take into account a variety of factors, including planning policy as evidenced by the planning authority's development plan for the area and any known or published policy or directives for the grant or refusal of planning permissions. The subsection, which implements the recommendations in the second part of Proposition 9(a) of the Law Commission Report, is designed as a guide and not as a directive to the Tribunal which will be able to take other matters into consideration and give them such weight as it thinks appropriate.
  The new subsection (1C) of Section 84 provides that the Tribunal's power to modify a restriction includes a power to substitute other restrictions as a condition of the modification. The subsection is inserted at the request of the Lands Tribunal to resolve a doubt whether the Tribunal's powers include a power of substitution. The imposition of an alternative restriction is often essential to do justice between the parties, as where a restriction of user for residential

  587
  purposes only is replaced by use for non-industrial purposes thus letting in business but not factory use. The subsection does not authorise the imposition of positive obligations (like an obligation to screen off new buildings) but will not prejudice the practice of the Lands Tribunal to impose such positive obligations in appropriate cases. Doubts on the validity of such obligations cannot be resolved until the enforceability of positive covenants has been regulated by Statute.
  Subsection (3) makes two changes in Section 84(2). First, it enables the court to make a declaration as to whether in the event of specified happenings land would be affected by a restriction or the restriction would be enforceable and, if so, by whom. Secondly, the subsection provides that subsections (7) and (11) of Section 84 (which exempt certain restrictions from the operation of the section) and any provisions in other Acts which disapply the section shall not exempt the restrictions to which they relate from the declaratory jurisdiction of the court under Section 84(2).
  In empowering the court to make declarations regarding future situations, the subsection implements the recommendation to that effect in Proposition 10(b) of the Report. By virtue of Section 84(5), such declarations will be binding on all persons, whether parties to the proceedings or not. The Amendment will assist developers who want to know in advance of proposed development what restrictions may be enforceable against them. In extending the jurisdiction of the court under Section 84(2) to cover restrictions exempt from the section, subsection (3) corrects an apparent anomaly. It cannot have been intended to exempt the relevant restrictions not merely from the jurisdiction of the Lands Tribunal to modify or discharge them but also from the jurisdiction of the court to make binding declarations as to their validity or enforceability.
  Subsection (4) enables the Lands Tribunal, in exercising its jurisdiction under Section 84, to direct inquiries to be made of Government Departments. The subsection implements the third paragraph of Proposition 9(a) of the Report. Though expressed in general terms, the Amendment is designed to complement the Tri-
  588
  bunal's existing power to direct inquiries of local authorities and is primarily aimed at eliciting information concerning planning circulars or directives issued by the Ministry of Housing and Local Government.
  Subsection (5), which introduces a new subsection (3A) to Section 84, requires the Lands Tribunal to give directions as to the persons who may oppose an application for modification or discharge. Such a direction is not to be appealable, but where the direction involves taking a view on any legal issue on which the court has jurisdiction under Section 84(2), the new subsection (3A) enables the proceedings to be suspended, in accordance with rules for that purpose, in order that the court's decision may be obtained. The subsection implements Proposition 11 of the Report with certain modifications and is designed both to preserve the existing jurisdiction of the court to determine issues of law and at the same time to ensure that the Lands Tribunal can for practical purposes decide who are to be parties to the proceedings before them without trespassing on the court's jurisdiction.
  The subsection aims to dispel the doubts raised by the decision of the Court of Appeal in Re Purkiss' Application [1962] I.W.L.R. 902, as to the extent to which the Lands Tribunal can decide who is entitled to oppose an application, where that question involves, as it often will, a decision as to the validity of a restriction or who is entitled to the benefit of the restriction. The subsection expressly enables the Tribunal to decide who may oppose an application, but requires rules to be made for the proceedings to be suspended, with a view to obtaining the determination by the court of any questions of law underlying the Tribunal's decision. By leaving rules to govern the detailed provisions, both on the circumstances in which proceedings are to be adjourned and on the method of reference of legal points to the court, the subsection provides a flexible machinery. It is intended that Lands Tribunal Rules will require the Tribunal to refer legal issues to the court whenever a party so requests and will give the Tribunal a discretion to do so of its own motion.
  Subsection (6) amends subsection (11) of Section 84 which sets out restrictions in favour of the Crown which are exempt

  589
  from the Lands Tribunal's jurisdiction. The subsection limits the duration of exemptions accorded to restrictions imposed for the benefit of the Armed Forces or for certain civil aviation purposes. By virtue of paragraph (a) of a new subsection (11A) to be inserted in Section 84, restrictions (not affecting aerodromes) imposed for the benefit of any of the Armed Forces are to be exempt only so long as the restriction remains enforceable by the Crown; by virtue of paragraph (b) of the new subsection (11A) restrictions affecting aerodromes or imposed for civil aviation purposes are to be exempt only so long as the restrictions remain enforceable either by the Crown or by any public or international authority.
  The subsection corrects an anomaly inherent in Section 84(11) whereby restrictions created or imposed for defence or civil aviation remain exempt even when those purposes are no longer applicable: for example. because the benefited land has been sold to a private individual for residential or agricultural purposes. Section 84(11) is brought into conformity with Section 38(3) of the Requisitioned Land and War Works Act 1945 (itself amended by subsection (7) of the clause) which exempts from the operation of Section 84 covenants obtained under the Defence Acts
  " so long as the covenant is enforceable by a Minister against the persons for the time being entitled to the land adversely affected thereby."
  The provision made in paragraph (b) of the new subsection (11A) for restrictions affecting aerodromes or imposed for civil aviation purposes ensures that these remain exempt so long as they are enforceable either by the Crown or by a public or international authority. This provision covers the cases in which, for instance, a military aerodrome is sold to a local authority for use as a civil aerodrome, a civil aerodrome is sold to the Ministry of Defence, or air traffic control installations are transferred to an international organisation. In such cases the restrictions remain exempt notwithstanding the failure of the precise purpose for which they were imposed.
  The subsection does not amend references to the Commissioners of Works and the Air Navigation Act 1920 in Section 84(11) despite the fact that they
  590
  are obsolete. The Commissioners' functions are now exercisable by the Minister of Public Building and Works and the Air Navigation Act 1920 has been superseded by the Civil Aviation Acts 1949–1968. The reference to the Commissioners is retained because most, if not all, of the restrictions imposed for the protect ion of Royal Parks and Gardens under statutory powers were in fact imposed by the Commissioners, so that reference to them is necessary in any event and under the rules of interpretation they will be taken to include reference to their successors. The reference to the Air Navigation Act 1920 is retained because many existing restrictions were imposed under that Act and because the pro visions authorising these restrictions are not exactly reproduced in the current legislation, so that a simple substitutional amendment is not possible without the risk of including inappropriate restrictions. The possibility of a more elaborate up-to-date reference to current legislative provisions is, however, still being considered by the Departments concerned.
  Subsection (7) amends Section 38(3) of the Requisitioned Land and War Works Act 1945, whereby covenants obtained under the Defence Acts are exempt from Section 84. The amendment substitutes for any covenant obtained under the Defence Acts" the words "any restriction created or imposed under the Defence Acts or under Section 13 of the Land Powers (Defence) Act 1958" and makes a consequential change.
  The amendments serve a dual purpose. First, restrictions imposed in connection with the acquisition of land by the Minister of Power for oil installations under powers conferred by Section 13 of the Land Powers (Defence) Act 1958, are brought within the exemption. Section 13 enables the Minister of Power to acquire, (i), land for the construction of oil installations necessary for the defence of the realm; (ii), land on which there are oil installations which were Government war works; and (iii), any right restrictive of the user of land essential to the enjoyment of the land acquired under the section. The last-mentioned rights may be acquired by agreement, but they are closely akin to restrictions acquired under the Defence Acts, and subsection (7) accordingly brings them within the ambit of the exemptions conferred by

  591
  Section 38(3) of the Requisitioned Land and War Works Act 1945. Secondly, the amendment, by referring to "restrictions" instead of "covenants ", is intended to silence any possible argument that restrictions created by methods other than contracts under seal (like informal contracts or deeds poll) are not exempt.
  Subsection (8) provides that the provisions of new Clause 25 are to apply to all restrictions within the ambit of Section 84, whether created before or after the clause comes into effect. Pending proceedings are not to be affected except by the procedural provisions of subsection (5), which is to come into effect on a date appointed by the Lord Chancellor. The remaining provisions of the clause will come into effect three months after the Bill becomes law, in accordance with Clause 27(2). In providing that new Clause 25 is to apply to restrictions created before the clause comes into force, subsection (8) follows recommendations in Propositions 9(a) and 11(d) of the Law Commission's Report. An "appointed day" provision is needed for subsection (5), to ensure that adequate time is available for the drafting of the rules of procedure required under that subsection. The subsection follows standard practice in not permitting substantive changes of the law to affect pending proceedings, but the procedural provisions of subsection (5) are to be applied to such proceedings as soon as they come into effect.
  I know that many of your Lordships have been anxious to see legislation of this kind for some time, and I am glad that the opportunity has been afforded in the course of this Bill. I apologise to the Committee for having been so long in introducing this new clause, but I know that very often a full explanation given at the time, and which is on record, may save Amendments which are really designed to elicit what is behind the clause. So I thought that in the end it might save time if I made a full statement in moving this Amendment. I beg to move.
  4.41 p.m.
  VISCOUNT COLVILLE OF CULROSS: There may be other noble and learned Lords who would like to speak on this subject, but perhaps I may say a few
  592
  words first. I am sure that the noble and learned Lord the Lord Chancellor is quite right in having given to the Committee a full explanation of this new clause. A great deal of what he said does not appear in the Law Commission's Report; indeed, some of the material is altogether new. I should be surprised if any great dispute arose on subsections (6), (7) or (8) of the new clause that he is proposing, but I would say a few words about the earlier parts. Perhaps the easiest thing to do is to look at the noble and learned Lord's Keeling Schedule, and deal with the bits that are printed in heavy type.
  The Committee will know that there are really two forums before which these matters of restrictive covenants are dealt with: the Lands Tribunal and the Chancery Division. I must say that I am always much too frightened to go to the latter, though I sometimes go to the former. The role that they each play is quite different, and is retained as quite different in this new modification of the law. The first thing that occurs is the widening of the power of the Lands Tribunal. I heard what the noble and learned Lord said about putting right the drafting of Section 84 itself. I do not know who it was that he asked, but had he asked some of those who perhaps go more frequently to the Lands Tribunal than to the Chancery Division I think he would have found that the words in the proviso to Section 84(1) about compensation are not perhaps so straightforward or so well understood as he may have been told by some others.
  No doubt he has thought of those who practise there, but the truth of the matter is that, apart from some very exceptional cases indeed, it is now so well known that under the present law the Lands Tribunal does not give compensation at all, because it can only modify the covenants if they are of no use to anybody and therefore, of course, no question of compensation arises, that nobody in recent years has ever bothered to look at all at the words relating to compensation, or so I venture to suggest. Now it is going to become extremely difficult, because an entirely different situation will arise whereby, although the Lands Tribunal can examine the value of covenants, it will have a different jurisdiction to override them, among

  593
  other things, in the public interest; and for that it is going to be able to pay compensation in suitable cases.
  The new subsection (1A) says that "Subsection (1)(a) above authorises the discharge" in certain circumstances," and that money will be an adequate compensation". Is the noble and learned Lord sure that the provisions about compensation in the proviso to subsection (1) are really clear? They are tied up with all sorts of restrictions and difficulties, and, if we are going to have an entirely new system whereby a much greater field is being taken into account by the Lands Tribunal, I should have thought that we ought to make quite sure that the rules as to the availability of compensation are not too closely bound to terms which were useful only in relation to the older and much more restricted form of jurisdiction. There is no new provision in the proposals in this new clause which increases the discretion of the Lands Tribunal about the things that it can take into account when assessing compensation and that sort of thing, and I should have thought that this ought to have been looked at again because the whole thing has been in a state of desuetude for a very long time.
  The second point which I should like to raise comes under the new subsection (1B). As I have always understood the situation in the past, one of the things that the Lands Tribunal has made quite clear is that it does not very much matter what the local planning authority has said about the use of the land in granting planning permission: the Lands Tribunal is going to look at the question in the light of the situation arising under the covenant. You can go there and tell them to your heart's content that you have planning permission for a block of flats 563 feet high, but they will not modify a covenant which says that the land shall not be occupied by more than one house unless they do so within the terms of the covenant and in the context in which the covenant was imposed.
  All that goes. The new subsection (1B) is a major change which allows them to take into account, for the first time, the development plan, and, indeed, a pattern of individual permissions that have been given. This is immensely important on questions like density—" How many houses should there be on this site
  594
  although there is a covenant which says that there shall only be two?", or" How many flats?" and questions of that sort. I think there is a danger here—I may be wrong but I put this forward for consideration—that one is going a little too far. if the Lands Tribunal is allowed to say that the covenant can be discharged because it is contrary to the public interest, and it then looks at an actual planning permission that has been given for a site which is in conformity with a development plan which says that when the area is re-developed the density shall be 140 persons to the acre and sees that there has been one other planning permission for an individual curtilage to be redeveloped in this way, it may well be that we shall swing too far the other way. We shall cease to take account at all of the character of the area which the covenant sought to set up.
  People have bought their houses in this area—not only the people next door; it may be people from outside who are not enabled to benefit from the specific covenant. Perhaps their land was sold at slightly the wrong time before the covenant was first imposed. Nevertheless, they are, I think, sometimes entitled to a little of the consideration in the public interest as well. There are peon le who have gone there because it is an area of low density development I am basing this to a certain extent on the sort of case that I have met, but it is applicable in other spheres as well—and it may well be that the Lands Tribunal, in view of the words of this Amendment, will start to think that it is no longer at all important to take into account the context of the covenant. The only thing it has to do instead is to see whether or not it approves of the view taken by the local planning authority. I should not think that this is what the noble and learned Lord and those who advised him really want.
  Probably what is wanted is a mixture of the two concepts. Do not rule out the local planning authority's view—let us give that its proper role in the consideration—but, equally, do not let us go overboard on it. Let us also take account of what the covenant could have been intended to achieve and what, indeed, it may have achieved in preventing redevelopment over a rather long period of time. I should like to see a balance

  595
  of that sort, which may not occur in the administration of this particular phraseology.
  I have no comment to make about subsection (1C), particularly having heard that it is put in at the request of the Lands Tribunal itself. It seems to me entirely sensible. The last point which I should like to raise is on the new subsection (3A). There has been no doubt at all that since the decision of the Court of Appeal in the Purkiss case, what has happened in the Lands Tribunal is that those who wished to apply for the modification or removal of restrictive covenants have been told that, for the purposes of that hearing in the Lands Tribunal—not necessarily anywhere else —they have simply got to accept that everybody who turns up to object is entitled to the benefit of the covenant. Sometimes, of course, they win, and sometimes they do not. But at least there is one thing that is quite clear at the moment: nobody spends any time at all in the Lands Tribunal going into questions of whether or not land is benefited, whether or not the covenant has been annexed, whether or not there is a building scheme, whether or not the people have bought with an express assignment of the covenant, and all the highly technical matters of that sort which the Court of Appeal have said ought to be dealt with by the Chancery Division and which always are dealt with by the Chancery Division.
  I am a little afraid that when the new procedure which is adumbrated here comes into force—and it will of course be extended when the Lands Tribunal Rules and the Rules of the Supreme Court are produced—the Lands Tribunal may in fact spend a great deal of time on these preliminary points, which will in the end have to go to the Chancery Division anyway under the case stated procedure. I think it is a little unfair on the Lands Tribunal, but the Court of Appeal indicated in the Purkiss case that perhaps the people to deal with these technical points of covenant law were the High Court of Justice, and not some of the members of the Lands Tribunal. I do not know whether or not that is justified: I am sure that they would deal with it extraordinarily well.
  596
  The fact of the matter is that I feel that this matter may have to be gone over twice, because people will not accept what the Lands Tribunal have said, and they will want a case stated to go to the Chancery Division under the adjournment procedure in Section 3A. That will be a waste of time. One has to balance this against the question of whether or not the present system, which accepts everybody who turns up as being a proper objector and entitled to the benefit of the covenant, prevents covenants being revoked or modified when they otherwise would be. Does the presence and the objection of those persons, whether or not they are entitled, in fact stop the proper use of land? I just do not know. I do not know in how many cases the balance has turned on what has been said by an objector who if one had sorted the thing out beforehand one would have discovered had no right whatever to be there. I think that is really the point. If one is going to find that a great deal more time is going to be spent on this without any substantive difference in the answer, except in so far as the powers are changed, then I wonder whether this is a good thing to do.
  I simply put this point forward, but I should very much like to consider it further. I have to some extent, but I think it is something which ought to be discussed. I should like to go on discussing it, but since this is really a Second Reading debate I do not propose to go into any further detail at this particular juncture. However, I think it is something which ought to be returned to, and that we ought to consider again at the next stage of the Bill; and I hope the noble and learned Lord will not mind if I put down some Amendments on this in due course.
  4.54 p.m.
  LORD WILBERFORCE: I shall endeavour to keep my observations on this Amendment shorter than the Amendment itself, but there are one or two things I should like to say about it. The noble and learned Lord the Lord Chancellor, in introducing the Amendment, referred to the fact that at a previous stage it had been sought to deal with this matter by means of a comprehensive new provision which would start again and clean the whole thing up. One must agree—and I

  597
  think the noble and learned Lord probably agrees—that as a matter of technique, that would be a very much better way of dealing with this section than that which has been found possible, because we are here dealing with a fairly old provision into which a number of new enactments are being poured; and I certainly share some of the doubts expressed by the noble Viscount who has just spoken whether the old bottle will really hold this new vintage which has been put into it.
  However, one must agree, having seen, as I had an opportunity of seeing, the earlier draft, that as a matter of substance what is here suggested is very much better and more practical than what was contained in the earlier proposition, and I would certainly give my recognition to the extent to which the noble and learned Lord has consulted expert opinion in Lincoln's Inn and elsewhere, and has, I think, obtained their substantial agreement to what is in this Amendment. So with some reluctance, which I would imagine is probably shared by those advising the noble and learned Lord, I would be prepared to accept the way in which this has been done; namely, by taking the structure of the existing section and doing the best one can with it.
  I have one or two observations on the provisions which are now inserted into it. First of all, subsection (1A). I am using, as the noble Viscount did, the Keeling Schedule, which we have so conveniently got. As a matter of drafting, I wonder whether it would not be preferable to divide that into two, because, as the noble and learned Lord the Lord Chancellor pointed out, there are really four cases in which restrictive covenants can be modified, not three. Paragraph (a) is really separable into two quite separate cases. One is where it is obsolete, and the other is where some reasonable user is impeded. The case for doing that becomes very much greater now that one has the new subsections (1A) and (1B), which deal with the second limb of Section 84(1)(a), and not with the first, and therefore as a matter of convenience, I should have thought it would be much more easily understood if the second limb of (1)(a) were made into a separate provision. However, that is only a matter of presentation, although
  598
  I would suggest possibly not an unimportant one.
  More significant, perhaps, is to be sure that we understand the extent to which the Amendments to the second limb of (1)(a) together with the new subsection (1A), really go. The noble Viscount pointed out some of the changes, but they really are very radical. The existing power to modify restrictive covenants under the second limb was limited to the case where "the reasonable user " of the land would he impeded without securing substantial benefit. That has been replaced by "some reasonable user", any reasonable user, which is very much wider; and, as regards the benefit to the owner,. it now has to be "benefits of substantial value", which one gets from (1A)(a). In addition to that, as pointed out under the new subsection (1B), the Lands Tribunal is given very wide powers to take into account
  " the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions …".
  I think one has to face the fact drat this makes such a substantial inroad into existing restrictive covenants that the whole nature of them is really changed to the detriment of the persons now entitled to the benefit of them, and I do not think it is very easy to see that from the way in which this is presented. When one looks simply at Section 84(1)(a) or the first Amendment, it does not look as if very much amendment is being made, but when you add it all up one sees how very substantial the inroad into this particular kind of right is.
  Coming to (1C), I should like make two points. I quite agree with the thought behind it, that if you are modifying restrictions or taking them away it may be a good idea to give power to put some new restriction on. But I have doubts as to whether the machinery as suggested here is sufficient to do the work. When one is modifying a covenant or removing it, there is subsection (5) of this section, which goes on to say what the effects of the discharging or modifying or dealing with a restriction is, and says it is binding on all sorts of persons, whether they are parties to the proceedings or not. But I do not find anything comparable, which does the same thing, in relation to a new restriction on user or on

  599
  building on the land affected which is introduced by the Lands Tribunal under (1C), and I should have thought that it would be desirable to add something which spells out what the effect on the owner of the land and on the persons entitled to the benefit is to be if such a new covenant is introduced. It is quite easy to say that it shall take effect as a new restrictive covenant which is binding on all persons, and so on, perhaps capable of registration as such. But it seems to me that at the moment it is left in the air under (1C).
  As to the drafting of (1C), I must say that I find the language in the fourth line of that subsection a little curious. It reads:
  "…as appear to the Lands Tribunal to be reasonable with the relaxation of the existing provisions, …"
  I suppose that what is meant is "to be reasonable having regard to the relaxation of the existing provisions " or "… as compared with the relaxation". But I should not have thought that "to be reasonable with the relaxation" was tight enough. I suggest that the noble and learned Lord might look at that again.
  I have no comment on the rest of the clause. It goes rather far; its presentation is not ideal; but the subject is an important one, and I think the noble and learned Lord was right to introduce it, even at this late stage. But I would join in commending to him reconsideration of it in one or two respects both in substance and in drafting.
  THE LORD CHANCELLOR: I am grateful to the noble and learned Lord and to the noble Viscount for the consideration they have given to this clause. I will take into account the three points that the noble Viscount made: first, on compensation and the proviso; secondly, whether the new subsection (1B) leaves things too open to the Lands Tribunal; and, thirdly, how far the new subsection (3A) may lead to people going over everything twice. As the noble and learned Lord, Lord Wilberforce, knows, I should have preferred to introduce something on a larger scale dealing with the whole of positive covenants or land obligations. As he also knows, an attempt was made to do so; but unfortunately
  600
  it foundered. And difficulties are being experienced on the second attempt, even by the chief draftsman himself. It is no doubt a very difficult subject. But I will carefully take into account all the observations which the noble and learned Lord, Lord Wilberforce, was good enough to make with a view to seeing whether or not Amendments should be made at a later stage.
  On Question, Amendment agreed to.
  Clauses 25 and 26 agreed to.
  Clause 27 [Short title, commencement and extent]:
  THE LORD CHANCELLOR: This Amendment is purely consequential; but there is an error in the printing of the Marshalled List. It is intended to except only subsection (5) of the new clause. I should have thought that the (5) would have come after the word "section". But I am told that it should read " Powers of Lands Tribunal Court in relation to restrictive covenants affecting land) (5) " I beg to move.
  Amendment moved—
  Page 15, line 25, after ("Act") insert ("except section (Powers of Lands Tribunal and Court in relation to restrictive convenants affecting land)") (5). —(The Lord Chancellor.)
  On Question, Amendment agreed to.
  Clause 27, as amended, agreed to.
  Schedule I agreed to.
  TIIE LORD CHANCELLOR: I beg to move Amendment No. 10, which is simply the Keeling Schedule reprinting Section 84 as amended
  Amendment moved—
  After the Schedule insert the following new Schedule:

  SCHEDULE
  LAW OF PROPERTY ACT 1925 SECTION 84 REPRINTED WITH AMENDMENTS
  [In this Schedule words inserted by the Bill are printed in heavy type.]
  84.—(1) The Lands Tribunal shall (without prejudice to any concurrent jurisdiction of the court) have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction (subject or not

  601
  to the payment by the applicant of compensation to any person suffering loss in consequence of the order) on being satisfied—

  (a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Lands Tribunal may deem material, the restriction ought to be deemed obsolete, or that (in a case falling within subsection (1A) below) the continued existence thereof would impede some reasonable user of the land for public or private purposes … or, as the case may be, would unless modified so impede such user; or

  (b) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified; or

  (c) that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction:

  Provided that no compensation shall be payable in respect of the discharge or modification of a restriction by reason of any advantage thereby accruing to the owner of the land affected by the restriction, unless the person entitled to the benefit of the restriction also suffers loss in consequence of the discharge or modification, nor shall any compensation be payable in excess of such loss; but this provision shall not affect any right to compensation where the person claiming the compensation proves that by reason of the imposition of the restriction, the amount of the consideration paid for the acquisition of the land was reduced.
  (1A) Subsection (1)(a) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of land in any case in which the Lands Tribunal is satisfied that the restriction, in impeding that user, either—

  (a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value to them; or

  (b) is contrary to the public interest;

  and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.
  (1B) In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Lands Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.
  (1C) It is hereby declared that the power conferred by this section to modify a restriction includes power to add such further provisions restricting the user of or the building on the land affected as appear to the Lands
  602
  Tribunal to be reasonable with the relaxation of the existing provisions, and as may be accepted by the applicant; and the Lands Tribunal may accordingly refuse or modify a restriction without some such addition.
  (2) The court shall have power on the application of any person interested—

  (a) to declare whether or not in any particular case any freehold land is, or would in any given event be, affected by a restriction imposed by any instrument; or

  (b) to declare what, upon the true construction of any instrument purporting to impose a restriction, is the nature and extent of the restriction thereby imposed and whether the same is, or would in any given event be, enforceable and if so by whom.

  Neither subsection (7) and (11) of this section nor, unless the contrary is expressed, any later enactment providing for this section not to apply to any restrictions shall affect the operation of this subsection or the operation for purposes of this subsection of any other provisions of this section.
  (3) The Lands Tribunal shall, before making any order under this section, direct such enquiries, if any, to be made of any government department or local authority, and such notices, if any, whether by way of advertisement or otherwise, to be given to such of the persons who appear to be entitled to the benefit of the restriction intended to be discharged, modified, or dealt with as, having regard to any enquiries, notices or other proceedings previously made, given or taken, the Lands Tribunal may think fit.
  (3A) On an application to the Lands Tribunal under this section the Lands Tribunal shall give any necessary directions as to the persons who are or are not to be admitted (as appearing to be entitled to the benefit of the restriction) to oppose the application, and no appeal shall lie against any such direction; but rules under the Land Tribunal Act 1949 shall make provision whereby, in cases in which there arises on such an application (whether or not in connection with the admission of persons to oppose) any such question as is referred to in subsection (2)(a) or (b) of this section, the proceedings on the application can and, if the rules so provide, shall be suspended to enable the decision of the court to be obtained on that question by an application under that subsection, or by means of a case stated by the Lands Tribunal, or otherwise, as may be provided by those rules or by rules of court.
  (5) Any order made under this section shall be binding on all persons, whether ascertained or of full age or capacity or not, then entitled or thereafter capable of becoming entitled to the benefit of any restriction, which is thereby discharged, modified or dealt with, and whether such persons are parties to the proceedings or have been served with notice or not.
  (6) An order may be made under this section notwithstanding that any instrument which is alleged to impose the restriction intended to be discharged, modified, or dealt with, may not have been produced to the court or the Lands Tribunal, and the court

  603
  or the Lands Tribunal may act on such evidence of that instrument as it may think sufficient.
  (7) This section applies to restrictions whether subsisting at the commencement of this Act or imposed thereafter, but this section does not apply where the restriction was imposed on the occasion of a disposition made gratuitously or for a nominal consideration for public purposes.
  (8) This section applies whether the land affected by the restrictions is registered or not, but, in the case of registered land, the Land Registrar shall give effect on the register to any order under this section when made.
  (9) Where any proceedings by action or otherwise are taken to enforce a restrictive covenant, any person against whom the proceedings are taken, may in such proceedings apply to the court for an order giving leave to apply to the Lands Tribunal under this section, and staying the proceedings in the meantime.
  (11) This section does not apply to restrictions imposed by the Commissioners of Works under any statutory power for the protection of any Royal Park or Garden or to restrictions of a like character imposed upon the occasion of any enfranchisement effected before the commencement of this Act in any manor vested in His Majesty in right of the Crown or the Duchy of Lancaster, nor (subject to subsection (11A) below) to restrictions created or imposed—

  (a) for naval, military or air force purposes,

  (b) for civil aviation purposes under the powers of the Air Navigation Act, 1920.

  (11A) Subsection (11) of this section—
  (a) shall exclude the application of this section to a restriction falling within subsection 11(a), and not created or imposed in connection with the use of any land as an aerodrome, only so long as the restriction is enforceable by or on behalf of the Crown; and
  (b) shall exclude the application of this section to a restriction falling within subsection (11)(b), or created or imposed in connection with the use of any land as an aerodrome, only so long as the restriction is enforceable by or on behalf of the Crown or any public or international authority.
  (12) Where a term of more than forty years is created in land (whether before or after the commencement of this Act) this section shall, after the expiration of twenty-five years of the term, apply to restrictions affecting such leasehold land in like manner as it would have applied had the land been freehold:
  Provided that this subsection shall not apply to mining leases.—(The Lord Chancellor.)
  On Question, Amendment agreed to.
  THE LORD CHANCELLOR: This Amendment is purely consequential. I beg to move.
  Amendment moved—
  In the Title, line 5, after ("charges") insert ("to make further provision as to the powers of the Lands Tribunal and court in relation to restrictive covenants affecting land;").— (The Lord Chancellor.)
  On Question, Amendment agreed to.
  Title, as amended, agreed to.
  House resumed: Bill reported with the Amendments.

ROYAL ASSENT
THE LORD CHANCELLOR: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Customs Duties (Dumping and Subsidies) Act,

Glasgow Corporation (Superannuation &c.) Order Confirmation Act,

Barnsley Corporation Act.

EXPERIMENTS ON BIRDS
5.6 p.m.
LORD SOMERS LORD SOMERS rose to ask Her Majesty's Government whether the experiments on birds, described in the Daily Telegraph of March 26, are likely to have any benefit on the community; and, if not, why the Home Secretary permitted them to be made. The noble Lord said: My Lords, I beg to ask the Question which stands in my name. In the Daily Telegraph of March 26 last there appears an account of an experiment on, I think it was, twelve chaffinches I had better read the account so that your Lordships will know what I am talking about:
"Experiments at Cambridge University in which chaffinches were artificially deafened, were undertaken to discover how the birds learned to sing, it was said yesterday.
" The tests at the sub-department of animal behaviour, a part of the Department of Zoology, are described as' monstrous' in the Shooting Times.
"Mr. Richard Porter, technical officer of the Royal Society for the Protection of Birds, said yesterday:' They were to find out if birds learned through hearing to sing or whether this ability is instinctive.
' I don't know what the findings were.'

605
"As the experiments were done under a licence from the Home Office the Society did not condemn them, he said.
"'About twelve birds were involved. It is unfortunate of course. I know it has created a lot of bad feeling among the public.
'But we have problems a thousand times greater to contend with, such as birds being caught in oil slicks.'
"Nobody at the university laboratories in Modingley near Cambridge, would talk about the experiment yesterday."
That, I think, is all I need to read of it.
I think that one of the most surprising things about this account is that Mr. Richard Porter, the official of the Royal Society for the Protection of Birds, did not condemn the experiments, simply because they were done under licence from the Home Office. Either an experiment is worth while or it is not. Even the Home Secretary is only human and is capable of making mistakes, like any other human being. I do not think that the mere fact that it was done under licence should be a reason for not objecting to it. He went on, as your Lordships have heard, to talk about the problem of oil slicks.
I have said before in your Lordships' House that I have no objection to experiments on animals where those experiments are going to bring benefit to the health and well-being of the human race; but this one it seems to me was in a very different category. I am not going to deny Mr. Porter's statement that the problem of oil slicks is a much greater one, but the two problems are totally different. The menace of oil on the surface of the sea is very great and thousands of birds suffer every year as a result of it. None the less, its presence is accidental, though no doubt we should do a great deal more to prevent it from happening. The experiment we are discussing to-night, my Lords, was no accident. This was a deliberate, cold-blooded act. And to what purpose? Simply to satisfy idle curiosity. The human race will not be one iota the better off or the more healthy for knowing the answer to this question.
In any case, the answer has already been found. My noble friend Lord Cork and Orrery, who has told me that unfortunately he will not be able to be present in the Chamber for this debate, showed me a book written by a very eminent ornithologist, Heinroth, and I should like to read two paragraphs from
606
that book. It is not a new publication; it was published in 1959.
"It has been shown that most of the true song-birds can imitate strange sounds, even though they have only simple songs themselves. Some of them learn their own songs by imitation, others do not. The song of the chiffchaff and grasshopper warbler is innate, as I found by raising them indoors. Even some of the birds with a very elaborate song can produce it without ever having heard it before—blackbirds and song-thrushes, for example. In the autumn a young hand-reared song-thrush weaves into his own practising all sorts of sounds he has heard from other birds, and the result is a stream of warbling gibberish."
My Lords, as a musician I can quite appreciate that and realise what the result is.
"But when spring comes, he produces distinct phrases which are quite recognisably thrush—though perhaps not very good thrush—and in which the borrowed sounds art: arranged into thrush rhythms.
"Chaffinches learn rather more of their song. Without any examples to listen to, they produce a song which sounds very unlike a wild chaffinch's but has some of the same rhythm. Normal chaffinches differ individually in the details of their songs; these details they learn from their neighbours in their first spring. One may say that they are handed on by tradition from generation to generation."
My Lords, that is a very authoritative account of how birds learn to sing and how they vary. Since that is already known, what is the purpose of this experiment at Cambridge; an experiment done in a far less humane way since the author of this book reared birds naturally from the egg, though keeping them in captivity of course, and did not deafen them or do anything like that? My Lords, I do not know very much about this experiment. I do not know how the birds were deafened so I cannot say how humane or inhumane it was. None the less, one has to remember that animals suffer a great deal more by instinct than by reasoning. The mere fact that they could not hear, that they were confined arid had not their natural freedom would be quite apparent to them by instinct, but not by reason.
As we all know, the Home Secretary is in a very difficult position. He has "cannon to the right of him", and "cannon to the left of him", and they are all volleying and thundering. On one side he has the scientists clamouring to do various new experiments, some of them very necessary ones and a great many more totally unnecessary. On the

607
other side he has the animal protection enthusiasts who can sometimes, as I well know, be nothing short of fanatical. I should like to make it plain, my Lords, that I mean some of them—not all of them by a long shot—and a small minority at that. Unfortunately, it is the small and noisy minority that gets publicity in the Press and is heard about and read about. As I say, the Home Secretary is only human, and with all he has to cope with I should think it would be surprising if he did not sometimes make a mistake. I shall be interested to hear what the noble Lord, Lord Stonham, has to say about this subject. He has always been extremely patient with me when I have brought my problems to him and I sincerely hope that he will show that I have not been wasting your Lordships' time to-night. I shall listen with attention to what he has to say.
5.17 p.m.
LORD HURCOMB: My Lords, I am sure that all those interested in the proper treatment of wild creatures will be grateful to the noble Lord, Lord Somers, for having drawn attention to the range of problems, of which this is one. It is true that a good deal of uneasiness has been felt and expressed recently about the experiments carried out, with no control and on a large scale, by American investigators who deprived birds of water to see what would happen. They came to the conclusion that the birds had not died of thirst but of dessication. That distinction made no difference whatever to the birds, and I agree with the noble Lord, Lord Somers, that it makes very little difference to or confers very little benefit on anybody else. But I think that these particular experiments are in a different class.
I venture to think that the noble Lord, Lord Somers, goes too far and unduly narrows the field of scientific experiment when he makes as the test some direct benefit to the community—that is to say, to the human community. In the present case I should have thought it was a matter of very real scientific interest and importance to know how far birds' song is wholly innate and how far it is capable of being developed or learnt from various sources. Despite the authorities he has quoted I do not think that it would be
608
agreed that those matters have yet been statisfactorily determined.
It may be difficult to see how far knowledge of this kind can be of immediate value in relation to human development, but may there not yet be much to be learned from the study of other animals in our efforts to understand the physical and neurological basis of our own potentialities by realising fully how these are developed? In this particular matter, birds are the obvious field for experiment, because, so far as we know, no other mammal except man has a potential of extending his vocalisation or imitating sounds emitted by any other animal. Therefore, if progress is to be made, it is essential to do it in relation to birds.
I understand that the experiments undertaken by Professor Thorpe were upon a small number of birds—some 20, I believe—which were completely anæthetised when part of their hearing was removed, and that was done under careful and properly understood techniques. It is also interesting to know that the effect upon the birds seems to have been entirely to their hearing. They behaved, mated and paired, and even brought up their young families, without any sense of difficulty, until the young birds reached an age when they depended upon clamouring for food to get this from their parents. At that point, of course, their parents, being unable to hear the clamour, did not make the ordinary responses. Perhaps I should mention one other point. These birds, having had their faculties impaired to some extent, were kept to finish out their lives under aviary conditions and were not let loose into the world where, of course, they would have been subject to many added risks through lack of hearing.
I venture to think that the licensing system, as administered by the Home Office in this kind of matter is very carefully and effectively administered, but no doubt that is a matter on which the noble Lord, Lord Stonham, will be able to give your Lordships some assurance. Apart from that, Professor Thorpe, with whom I am well acquainted, is not only a scientific investigator but also a keen bird lover and bird protectionist, and I am sure that none of the experiments carried out under his supervision would either be scientifically pointless or merely

609
repetitive of something that is already well known or in any way would inflict unreasonable damage to the birds themselves.
Therefore, though in general I would share the uneasiness of the noble Lord, Lord Somers, at indiscriminate ill-directed experiments upon birds or any other creatures without a proper control, I feel that in this particular case the charge of inhumanity or cruelty, or just of a wasting of scientists' time, does not really lie against Professor Thorpe and his colleagues. Having said that, I would add that, as a protectionist, I think, that the noble Lord does a real service in reminding your Lordships and other people of the need for some proof, not that the results of these experiments will be directly beneficial to human needs, but that they have a scientific value and are not undertaken, like depriving the birds I mentioned of water, just to see what happens and then describe the result.
5.26 p.m.
LORD PLATT: My Lords, perhaps I should start by revealing the fact that I am a member of the Advisory Committee of the Home Office which has referred to it from time to time applications for experiments which are considered to be possibly undesirable for various reasons. Also as head of the Royal College, I have had to sign numerous applications for licences for animal experiments and I have also held such a licence myself. Whether your Lordships look upon these facts as a qualification for my speaking in this debate or as a declaration of interest, I leave to your Lordships.
I want to say at once that I have a built-in aversion to all animal experiments, though I completely accept that they are absolutely necessary to medical and scientific progress. Therefore, I share with the noble Lord, Lord Hurcomb, a very considerable sympathy with the point of view put forward by the noble Lord, Lord Somers, who questions the justification on ethical or scientific grounds for certain experiments. It is in this way that those of us who have the duty of granting licences and supervising the conduct of experiments are kept continually reminded of the responsibility of our task.
Animal experiments are of various kinds. They vary in severity from a mere prick to a major operation and from
610
inflicting rather negligible and transient pain to depriving an animal of some essential faculty. Their purposes also vary, from those at one end of the scale directly concerned with the investigation of a specific illness to those at the other extreme, which are designed to reveal the underlying mechanisms of animal physiology and behaviour with a view to building up scientific knowledge, the value of which to the amelioration of man's suffering and handicaps may not at once be obvious.
It is clear that the experiments to which the noble Lord has directed our attention are well into the second category and do not lead at once to new ways of overcoming the handicaps of defective hearing and speech, though in the course of time they may help to do so. The noble Lord has asked whether the experiments are likely to be to the benefit of the community. If we accept that science, including medical science, cannot advance without the continuous exploration of basic mechanisms, then we cannot necessarily answer the question as at present framed, and perhaps this is because this is the wrong question.
One may ask then whether I am justifying all animal experiments simply because we cannot always tell in advance just what the benefit to the community may be. I would not assent to that, of course. I think that the discerning scientist knows, and that those who guide him should also know, whether the question to which he seeks an answer is basic and important to medical or biological science or whether he is merely contemplating a badly planned experiment unlikely to give more than an uncertain answer to a question of trivial importance. This I think is the question which should be asked in this particular case, and I myself would answer it in quite definite terms: that the experiments were designed to throw fresh light, not simply a repetition of knowledge already determined, and did in fact throw light upon fundamental questions concerning the relative importance of instinct and of learning in the development of vocal patterns of communication. As the noble Lord, Lord Hurcomb, has told us, these birds were not confined to artificial conditions. They were in an aviary with other birds, and the behaviour of the deaf birds was clearly not distinguishable from the

611
behaviour of the other birds to any person who simply observed their behaviour in the aviary.
One must, even so, consider whether the severity of a certain experiment is too great to justify its use even if the aims are of importance biologically. I would say that here again I think we are on the right grounds in this experiment, which was so carefully controlled and supervised. Only a certain limited number of experiments have been performed, and Professor Thorpe tells me that there is no immediate intention of doing any more experiments of the same nature.
All those who know something of the history of science realise that the second category of experiment, that which is devised to throw new light on basic problems, may in the long run turn out to be of more importance to the community than the experiment in which the immediate gains and limitations are more obvious. I should like to end by quoting from what the great Michael Faraday said of his experiments on electro-magnetism and induced currents. He said:
"I have rather been desirous of discovering new facts and new relations depending on magneto-electric induction than of exalting the force of those already obtained being assured that the latter would find their full development hereafter."
He left it to others to find the applications of his work to all kinds of present day technology, including communications by submarine cable. For all these reasons, I believe that the experiments that we are considering to-day were justified, and that the Home Office were right to permit them. Nevertheless, I add to what the noble Lord, Lord Hurcomb, said my gratitude to the noble Lord, Lord Somers, for raising the point.
5.33 p.m.
THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM): My Lords, twelve weeks ago your Lordships declined to give a Second Reading to a Bill prohibiting the export of animals. In my speech, before advancing reasons why I thought that the Bill should be rejected, I gave what I thought was convincing evidence of my own love of animals and detestation of cruelty to those creatures that we wrongly call "dumb creatures". This did not protect
612
me from a stream of sharply abusive letters. Indeed, one was so sharply abusive as to say: "I killed many men during the prohibition days in the United States and during the war. I am 70 years of age, and I would cheerfully kill you, as I have not much to lose." The stream of letters has now dwindled to a trickle, but it still continues even after such a lapse of time.
Every weekday, I suppose, for the past eight or nine months I have written letters to Members of Parliament who have written to me on behalf of their constituents asking what are the Government's intentions towards the implementation of the Report of the Littlewood Committee. I must have written some 200 to 250 letters of that kind. So I am acutely conscious of the great importance of this subject to the people of this country. The fact is that the British, to their credit, just cannot stand the unnecessary infliction of pain on animals. Nothing more quickly excites our anger; and I must confess that my own immediate reaction to the story in the Daily Telegraph, that some chaffinches had been deafened in an attempt to find out whether they learned to sing through hearing or whether they do so instinctively, was: who cares? Who wants to know?
I therefore join with other noble Lords in thanking the noble Lord, Lord Somers, for his public-spirited action in raising this Question, particularly as it gives me the opportunity to give the full facts, fairly and objectively, and in this way to remove, I hope, the anxiety which has been needlessly and unwittingly aroused. In the process, I hope to convince the noble Lord, Lord Somers, that when he said that this was a deliberate cold-blooded act, and asked to what purpose it was performed—was it simply to satisfy idle curiosity?—he was wrong; and that when he said the human race will not be better off for this experiment, he was also wrong. But that does not abate my gratitude to the noble Lord for raising the matter.
I want also to clear up some of the misunderstandings that appear to exist about the operation of the Cruelty to Animals Act 1876 under which experiments on living animals are at present controlled. I hope that noble Lords will forgive me if I deal with this at some

613
length because, important as the particular Question that the noble Lord has raised is to all the people in this country, the whole matter of experiments on animals is of vastly greater importance, and something of this may be conveyed to people who are very anxious about it. In the course of their inquiry the Little-wood Committee found several widely held misconceptions about the Act and its administration, and they discussed these in some detail. Therefore, before turning to the actual experiments which are the subject of the noble Lord's Question, I should like to remind the House of the control that is exercised over experiments on living animals, and the purposes for which the Cruelty to Animals Act permits such experiments to be performed.
The Act regulates and restricts experiments calculated to cause pain to any living vertebrate animals. The restrictions imposed are designed to ensure that no animal under experiment suffers severe pain that is likely to endure or suffers avoidable pain of any kind. The Act does not define "experiment" or "pain", but for the better protection of animals the Home Office (and I am grateful to the noble Lord, Lord Hurcomb, for his kind words about the way my Department administer the Act) have interpreted these terms "experiment" and "pain" widely. Thus, in practice, any procedure upon an animal designed to find the answer to a problem—other than diagnosis in the course of ordinary normal veterinary practice—is regarded as an experiment; and it is considered to be subject to the Act if it presents even the risk of discomfort or interference with the animal's normal state of health or wellbeing. I think we shall all agree that this interpretation of "experiment" or "pain" could scarcely be wider than it is.
The Act lays down precisely the purposes for which such experiments may be performed—and I shall have more to say about this in a few moments. But first I would assure your Lordships that no person can perform an experiment without obtaining a licence from the Home Secretary. No applicant is granted a licence unless he is recommended by two persons holding offices specified in Section 11 of the Act. One of these must be the president of one of the
614
learned societies named in the Act. The noble Lord, Lord Platt, indicated in his speech that he, as the President of the Royal College of Physicians, was one of those heads of learned societies, and he signs many such certificates; and the noble Lord, Lord Florey, in fact signed this particular certificate, as the President of the Royal College of Surgeons, I believe, which permitted this experiment. That is one. The other signatory must be the professor of a branch of medical science. This guarantees that licences are granted only to highly responsible, qualified people.
In any experiment performed under licence alone the law requires that the animal must during the whole of the experiment be under the influence of an anesthetic of sufficient power to prevent it from feeling any pain, and if pain is likely to continue after the effects of the anæsthetic has ceased, or if any serious injury has been inflicted, the animal must be killed before it recovers from the anæsthetic. Where these restrictions would necessarily frustrate the object of the experiment the Act provides for them to be relaxed at the discretion of the Home Secretary by virtue of one or more certificates to that effect given by the statutory signatories whom I have mentioned; that is, persons holding the offices required to sign applications for licence.
All places where experiments under the Act are performed are also required to be registered by the Home Secretary, and these premises are regularly visited, without prior notice, by one of the ten Home Office inspectors to ensure that the requirements of the Act are being properly observed. That is the general position.
I now turn to the aspect of this matter which bears particularly on the Question asked by the noble Lord, Lord Somers; that is, the purposes for which experiments may lawfully be performed. Subsection (1) of Section 3 of the 1876 Act is quite explicit. It says:
"The experiment must be performed with a view to the advancement, by new discovery, of physiological knowledge, or of knowledge which will be useful for saving or prolonging life or alleviating suffering."
Thus an experiment is permissible under the Act for the advancement by new discovery either of physiological knowledge or of knowledge which will be useful for

615
saving or prolonging life or alleviating suffering. The pursuit of fundamental physiological knowledge is itself enough, without the need to demonstrate any evident or direct usefulness to mankind or animals to be sought from the experiment. The Littlewood Committee gave very careful attention to this point, and to the argument that Section 3(1) of the 1876 Act also implies that the Home Secretary is responsible for adjudicating—which again was implicit in the noble Lord's Question. He said twice (I am grateful to him for it) that the Home Secretary is only human. I say that he is very human indeed. But they gave particular attention to the question of the responsibility of the Home Secretary for adjudicating on the usefulness of a proposed piece of research. They concluded that the interpretation which we put on that subsection was undoubtedly correct, and they rejected the contention that the Home Secretary is responsible for inquiring into the likely value to be derived from specific experiments.
I do not want to keep your Lordships for too long, but it may be helpful if I remind you what the Littlewood Committee said in this context. They said—and I am quoting from their Report:
"It was strongly contended by witnesses for the Royal Society for the Prevention of Cruelty to Animals and by several correspondents that it was the clear intention of the Act that experiments should not be permitted unless they were essential to solve some specific problem of human or animal suffering. The Home Office has always acted on the view that the phrases"—
that is, the phrases I have just read out—
"describe alternative classes of purpose for which experiments are permissible. We have no doubt that this is the correct interpretation and that the Home Office is bound to allow experiments for the advancement of fundamental knowledge. … We noted that the Royal Society for the Prevention of Cruelty to Animals also took Section 3(1) to imply that the Secretary of State is responsible for adjudicating upon the usefulness of a proposed piece of research or for assessing the results of scientific work. … Home Office practice is to establish that each application for a licence or a certificate is for a class or purpose permitted by the Act. … If, however, the application prima facie satisfies the general requirements of the section, the Home Office has no further concern to assess the potential value of the proposed research or the results of past research."
616
Thus the Littlewood Committee. There is no question whatever, therefore, that in the view of the Littlewood Committee my Department in these matters is pursuing absolutely and scrupulously the correct and proper procedure.
The Littlewood Committee also gave careful consideration to evidence presented about "unnecessary" experiments, so-called, and the need for imposing restrictions in any future Act on the performance of experiments not directly aimed at solving some specific problem of suffering. In paragraph 270 of their Report they said:
"From our study of the evidence about unnecessary experiments and the complexity of biological science we conclude that it is impossible to say what practical applications any new discovery in biological knowledge may have later for the benefit of man or animal. Accordingly, we recommend that there should be no general barrier to the use of animal experimentation in seeking new biological knowledge even if it cannot be shown to be of immediate or foreseeable value. On this principle we think the formula in subsection (1) of Section 3 should be retained."
So, my Lords, the Littlewood Committee, besides endorsing the established view that the present Act does not restrict experiments to those likely to have direct or foreseeable benefit to mankind or animals, recommended no change in the underlying principle. I invite your Lordships to ponder the wisdom of those conclusions and, in particular, the impossibility of predicting the practical benefits that may at any time, and often quite unexpectedly, be derived from what may appear to be pure research.
I have in my hand a letter, dated April 17, this month, from the Audiology Research Unit of the Royal Berkshire Hospital, Reading. It says:
"Dear Professor Thorpe,
"We are doing some work here at Reading on the effects of auditory stimulation before birth"—
of course, in talking about "before birth" it refers to human babies—
"and during the first weeks of life of both human beings and animals. One of our major concerns is to discover the effects of deprivation of auditory experience on the development of speech reception and language ability. I have read with great interest of some of your recent work and wondered if you would be kind enough to allow me to visit your Department to discuss techniques with you or your colleagues. If you can accommodate this venture perhaps you will be kind enough to suggest a convenient date."

617
That is one example, which happens to have come into my hands this afternoon, of just one of the results.
In every field of endeavour, not least those of medicine and biology, practical advance would have been greatly retarded, and humanity deprived of many of its greatest benefits, without the constant and ever-increasing pool of knowledge which pure research has accumulated. My Lords—and I hope that the noble Lord, Lord Somers, will accept this—there is no question (I have been into this matter very carefully) but that the experiments involving the deafening of chaffinches constituted genuine scientific research. They were carried out at Cambridge University, as your Lordships have heard, nearly five years ago by Professor Thorpe working in conjunction with a visiting American professor.
Professor Thorpe is the Director of the Sub-Department of Animal Behaviour at Cambridge University. He is one of the most eminent zoologists in the country, and as such he was a member of the Brambell Committee which inquired into the welfare of animals kept under intensive systems of livestock husbandry. For that Committee Professor Thorpe produced a memorandum on The Assessment of Pain and Distress in Animals, which appears as Appendix III of the Brambell Committee's Report. It is a model of enlightened appreciation. I mention this merely to underline the fact that this project was carried out under the direction of a senior scientist who not only is one of the leading authorities in his field but, in the words of my noble friend Lord Hurcomb, is certainly very concerned about animals. Perhaps anything I have said on this subject is completely outshone by what Lord Hurcomb has said. I regard him as the doyen of bird lovers and bird protectors, and if he is satisfied in this matter then certainly I am.
LORD SOMERS: My Lords, may I interrupt the noble Lord? I quite agree with everything that he has said about my noble friend Lord Hurcomb, and I also agree that this was an absolutely genuine experiment, but I wonder whether the noble Lord would not agree with me that there may possibly be occasions on
618
which it is better for us to remain ignorant.
LORD STONHAM: Possibly, my Lords, but this is not one of the occasions. The Press reports about these experiments—and I make no complaint about them—referred to their being performed to ascertain how birds learned to sing. To put it mildly, that was a very superficial description of the purpose. While the experiments were immediately directed at an ornithological problem in connection with Professor Thorpe's work on the ontogeny and vocal communication in birds, they were far from being merely of ornithological interest. They were in fact of wide biological importance in that they were designed to throw light upon the method of formation of neural templates in the brain. They were thus of fundamental importance to students of brain mechanisms. So far as is known, birds are the only animals, apart from man, which have the power of vocal imitation; hence the use of chaffinches in this particular experiment. In man, vocal utterances are monitored continuously by the ears. If the feed-back through the ears differs from that which the speaker utters, gross distortions of speech may occur. The occurrence of imitation in birds provides an opportunity to study the role of feed-back in vocalisation in a situation which, because of the stereotyped nature of birdsong, is much simpler than that in man.
The experiments gave a definite answer to the questions posed. The results were made known at a congress in 1966 and have since been published in ornithological publications. The answers were in fact these: the deafened adult birds continue to sing, but birds deafened as juveniles could not develop the overall song structure. The curious thing is that these experiments only came to the notice of the public because Professor Thorpe, in remonstrating wish an American ornithologist (as I think my noble friend Lord Hurcomb has suggested) for carrying out severe procedures on birds which provided no scientific information of value, contrasted this with his own very different procedure in 1964–65. I hope this disposes of any suggestion that Professor Thorpe was cruel.
In all, 20 chaffinches were used in these experiments. They were taken from the

619
wild, some as nestlings and others as adult birds, under a licence—as I think the noble Lord said—issued under the Protection of Birds Act by the Nature Conservancy. They were rendered deaf by means of a minor surgical operation, carried out under full anæsthesia under the authority of a licence and certificate B granted under the Cruelty to Animals Act. Certificate B refers to an experiment carried out under anæsthesia, where the animal is not killed before it recovers from the influence of the anesthetic. The birds were therefore subsequently allowed to recover from the effects of the anæsthetic.
Both the report on the experiments which has been made by Professor Thorpe, and the observations of the Home Office Inspector (who has nothing but praise for the conditions under which the birds are kept) confirm that within a day or two of the operation the birds were entirely normal in their appearance and general behaviour and showed no signs whatever of suffering any pain or distress as a consequence of being deaf. As my noble friend Lord Hurcomb has said, they are mating normally, and producing fertile eggs, but because of their deafness they cannot themselves alone rear their young to final maturity. Deaf birds would, of course, be at a disadvantage in the wild in avoiding certain predators and would be unlikely to survive. For this reason none of the birds used in the experiment was released; as required by law, after the full results of the experiment were known, they were killed.
My Lords, before I sit down I would say that I deplore the fact that since the news story was published some individuals, who doubtless would call themselves bird lovers but whose conduct proves them to be the reverse, broke open the aviaries and released some doves and budgerigars. Unfortunately, some of these birds have already been killed by predators; all the remainder will either be killed by predators or will starve to death. I can only hope that other people who might feel inclined to take similar action will in future take the trouble to get the facts right first, as the noble Lord, Lord Somers, has done. These experiments were for a scientific purpose and they were properly carried out. They were successful in producing definite answers to the ques-
620
tions posed, and the results of the work have been published. Since the series of experiments was completed in 1965, no similar experiments have been made by Professor Thorpe and he has no proposals to repeat them.

GIBRALTAR AND THE CASTIELLA PROPOSALS
5.57 p.m.
LORD MOYNIHAN LORD MOYNIHAN rose to ask Her Majesty's Government: Whether they intend to implement the United Nations resolution calling for the handing over of Gibraltar to Spain by October 1, 1969, and whether they will negotiate with the Spanish Government to find a solution based on the Castiella proposals. The noble Lord said: My Lords, I should like to start by saying once again, as I do when I address your Lordships on this subject, that I am not in any way speaking for the political Party on whose Benches I have the honour to sit.
This is a difficult and highly inflammatory subject. It is surely natural and correct that a subject which brings two peoples into conflict, the one side firmly thinking themselves to be defending basic human rights and the other defending its own territorial integrity, should be inflammatory. We in this country are in a no more enviable position since we hold the reins, as it were, of these two horses, each powerfully pulling in a different direction; and although passionate views are held by just about every Spaniard and just about every Gibraltarian, I am afraid that the subject seldom conjures up more than varying degrees of either apathy or jingoism, as the two extremes, among the people of this country. It seems that many people in this country would prefer to shut the door of the cupboard, leaving the problem inside and pretending that it did not exist. I, for one, have always believed that it would be possible to reach a compromise on this issue totally satisfactory to all the parties concerned if jingoism could be avoided and the realities of history and present conditions faced. It is with this in mind that I raise the subject again in your Lordships' House.
I think there are four points on which we may all find ourselves in reasonable agreement as a basis for this discussion this evening. The first point is that the

621
Treaty of Utrecht is an outdated document. This cuts both ways, because Spain has many rights under the Treaty of Utrecht which really she should not be allowed to use, and which she does not use. For example, there are many racially prejudicial clauses in the Treaty of Utrecht. Also, under the Treaty Gibraltarians do not exist; and that, surely, we can all agree is not an ideal state of affairs. The reason for this, of course, is that the Gibraltarians were not there at the time the Treaty of Utrecht was signed, and surely we must all be just as concerned about their interests in this as about the interests of anybody else. That is the first point on which I would ask agreement from noble Lords in this House.
The second point may be slightly more controversial, but anybody who looks un-biasedly at the map of Europe must be forced to admit that geographically Gibraltar is part of Spain. The third point is that Gibraltar is the only remaining Colony on European soil, and this surely constitutes an undesirable principle. The fourth and last point on which I hope we shall all agree is that although the history of Gibraltar has been the scene of some of the greatest of British military prowess, of which we can all be extremely proud, the way this country has behaved politically throughout history on this issue has left a good deal to be desired.
I am sure that the noble Lord who is to answer me will make a large issue of the plebiscite which was conducted recently in Gibraltar. We all know of it, and we all know of the result. I said before it took place that it was a mistake, since it would reveal nothing about the views of the inhabitants of Gibraltar that was not already known and would further antagonise the Government of Spain. I am afraid that I was proved to be right. The other plebiscite which has taken place is the world plebiscite, the plebiscite of world opinion on this issue. And although I have the greatest respect for the debating skill of the noble Lords who will speak this afternoon I feel that it will tax them to the hilt to be able to explain away the figures as they were shown in the United Nations. The figures, of course, were that 67 countries voted for the return, or what is easily seen to mean the return, of Gibraltar to Spain, and 18 voted against it.
A great deal was made of the fact that a tremendous number of South American Spanish-speaking ex-Spanish colonies voted for the Spanish side; and this is indeed true. It is also interesting to see that all but three of the 18 votes cast for us were from our ex-Colonies or territories in which we had a vested interest. The only three non-committed countries that voted on our side were Sweden, Denmark and Liberia. Of the countries which used to be our Colonies, or in which we used to have a vested interest, 12 voted against us, whereas not one such ex-colony of Spain voted against her, and 13 of our ex-territories abstained, whereas not one of the ex-Spanish ones did. Many of our traditional allies abstained, presumably because they felt it impossible to vote for us and did not wish to embarrass us by voting against us.
But the strangest thing of all revealed by the United Nations vote was the strange bedfellows who voted against us. Is it not incredible that Spain should be supported by the Communist; that China should find herself in the same lobby as Cuba, and that the entire Arab world should for the first time in recent years be united in one lobby? If I might just remind your Lordships of the famous words of ex-President Eisenhower, he said that "to unite Arabs was like trying to nail a piece of jelly to the wall." We have managed to do this, against us.
I think it may be interesting for your Lordships if I recapitulate exactly what the resolution of the United Nations says. If you will bear with me, I will read it; it is quite brief:
"The General Assembly,
Having considered the question of Gibraltar,
Having heard the statements of the administering Power and the representative of Spain,
Recalling its Resolution 1514(xv) of 14 December 1960,
Recalling also its Resolution 2353(xxii) of 19 December 1967,

1. Regrets that the administering Power has failed to comply with General Assembly Resolution 2353(xxii);

2. Declares that the continuation of the colonial situation in Gibraltar is incompatible with the purposes and principles of the Charter of the United Nations and of General Assembly Resolution 1514(xv);

3. Requests the administering Power to terminate the colonial situation in Gibraltar no later than 1 October 1969;

4. Calls upon the Government of the United Kingdom of Great Britain and

623
Northern Ireland to begin without delay the negotiations with the Government of Spain provided for in Resolution 2353(xxii);

5. Requests the Secretary-General to give the Governments of Spain and the United Kingdom of Great Britain and Northern Ireland any assistance they may require for the implementation of the present resolution, and to report thereon to the General Assembly at its twenty-fourth session."

My Lords, I think that resolution is perfectly explicit, and that is what these countries voted for.
A large number of red herrings have been drawn across the issue of Gibraltar. The first and most often heard is the political colour of the present Spanish Government. This is the subject often of even popular joking, and I would, if I might, very briefly quote Mr. Winston Churchill, who on May 24, 1944, said:
"I must say that I shall always consider a service was rendered at this time by Spain, not only to the United Kingdom and to the British Empire and Commonwealth, but to the cause of the United Nations.
"I have, therefore, no sympathy with those who think it clever, and even funny, to insult and abuse the Government of Spain whenever occasion serves."—[OFFICIAL REPORT, Commons. 24/5/44. col. 770.]
This is one cause on which Spanish people are totally and completely united, and any question about the political colour of the Government in power at present in Spain is totally irrelevant. May I quote from an article which appeared on May 18, 1968, in a magazine called the Tablet, by that well-known Spanish exile, Salvador de Madariaga, who of course does not normally agree with the Government in Spain. He wrote:
"The Spanish position now is that although legally the Rock is British, politically it must return to Spain; for such a purely legal concession (even overlooking the fact that it was exacted under duress) is no longer tenable in itself nowadays. Suppose a Sultan, in 1713, had extracted from another Sultan a right to receive one thousand maids a year for his harem: legally, this right would he indisputable; politically, no longer defensible. A nation nowadays can no longer occupy a patch of the territory of another nation in the geographical and historical conditions in which Britain occupies Gibraltar."
That is from an enemy of the Spanish régime.
It seems to me that there are two issues here. I should be very happy if the Minister, when he replies, would state quite clearly his position on this.
624
The first issue would seem to be: should or should not the inhabitants of Gibraltar be handed over to a dictator? A second entirely different issue seems to me to be: should or should not Gibraltar be handed to Spain? I should like this cleared up now; and if the Minister will say that if the Government of Spain were a freely elected democracy the Government of Great Britain would then negotiate the issue of sovereignty, it would make it entirely clear one way or the other.
The next red herring, which is indeed directly connected, is the non-democratic nature of Spain. I do not wish to make an issue of this matter and I would pass it over lightly, but the question has arisen recently of the non-democratic nature of Gibraltar. It is a very great pity when one or two people who feel in a way that is different from the feeling of the majority of people in that place have their houses looted, their yacht burned and generally have their home made uninhabitable for them, their family and their children. Surely nothing worse than that has happened in Spain recently.
The third red herring is the question of Spanish belligerence, as it is called: the fact that England would like to negotiate but cannot in any circumstances negotiate under pressure. This clearly does not hold water, either. There is no Spanish pressure, to my knowledge, which has been applied and which is not clearly covered in the stipulations of the Treaty of Utrecht The next, and possibly the most serious of the red herrings, is the military arguments. I am not a military strategist and I can hardly deal with this subject, but it is dealt with in the Castiella proposals, and I should have thought that the ultimate solution to this question would be for Spain to become a member of NATO and for the base at Gibraltar to be a NATO base. It seems to me a logical conclusion.
A lot is made of the British nature of the people in Gibraltar. I will, if I may, recount shortly something that happened to me in a bar in the main street in Gibraltar not long ago. With ten or twelve other people, all Gibraltarians as I later verified, I was watching Sir Joshua Hassan addressing the people of Gibraltar on television. At the end

625
of his speech, which was of course made in English, the people in the bar gathered round me earnestly to question me in Spanish as to what their Prime Minister had said, because none of them understood him. That is a true story. It is an interesting point, also, that during the riots of April 6 one of the most common catch phrases was, Sus mulas quien no soy Inglés, which means, "Anybody who is not English is a donkey". The interesting thing is the fact that it is always said in Spanish. In fact there are many Gibraltarians whose only English sentence is, "Vritee we are, Vritee we estay". Anybody with an intimate knowledge of Gibraltar knows that in fact the people there are far more basically Spandiards than they are British.
It is incredible to me that the same people who in this House and in another place have their speeches, which one can read in Hansard, dotted everywhere with references to United Nations resolutions, are the same people who are now up in arms over this one. It seems to me that we must clearly make up our minds. Either we are going to subscribe to the United Nations resolutions or we are not. We cannot subscribe only to the ones that suit us and not to the ones that do not. It seems that there is an eventual inevitability of the return of Gibraltar to Spain. I, as much as anybody in this House, have a genuine desire to protect the future of the Gibraltarians: the only difference is that I feel differently about how it should be done. I am convinced that if a negotiated settlement were to take place now the Gibraltarian would have every guarantee that he could possibly wish for. I am equally convinced that if this matter drags on, with no settlement, in the end the Gibraltarian will get nothing.
There are vast Spanish plans for the development of the Campo of Gibraltar and the Bay of Algeciras. There are plans to make it a free port of its own. There are plans to create new industries in order that they may totally withdraw the working force from Gibraltar. There are plans to turn it into a viable holiday resort. All these things will go ahead, and gradually Gibraltar will become less and less attractive and less and less habitable. And when this happens the inhabitants will drift away, one by one, family
626
by family, and the Rock will be left with only the apes. I feel that it is of extreme importance that if we are going to take the attitude which we are taking, at least the Gibraltarians should be given the right of free entry into this, country. We are responsible for making Gibraltar uninhabitable—that is what is going to happen—and we are giving the Gibraltarians nowhere to go. Surely they should be allowed admission to this country.
If the Castiella proposals, with which I am sure your Lordships are all familiar, are unacceptable as a basis for negotiation—and nobody is insinuating that they should be accepted in toto—may I read to your Lordships the proposals which were made in an article in the Gibraltarian Chronicle on April 4, 1968, two days before the unfortunate riots, by the group of Gibraltarians who call themselves "The Doves". I defy anyone to say that there is anything controversial in this series of proposals. Here they are:

"1. Recognition of the Gibraltarian Community as the rightful inhabitants of Gibraltar.

2. The preservation of their existing citizenship of the United Kingdom and Colonies and, if Britain were to agree, United Kingdom passports and exemption from the provisions of the Commonwealth Immigrants Acts.

3. A freey elected Government with autonomy in all internal affairs, the qualifications of candidates and voters being that they must be of British citizenship.

4. An administration composed of British subjects exclusively.

5. A police force composed of British subjects exclusively.

6. Law courts from which there will be a final appeal to the United Kingdom, which will enforce British law as modified by the Gibraltar Legislature, and of which both the judges and advocates will be British subjects.

7. Freedom of thought, of religion, of belief, of speech, of association, the right to strike as an individual, a collectivity, or as a member of a freely constituted trade union.

8. The maintenance and improvement of existing social, educational, medical and hospital services run by British subjects.

9. Equality of all before the law, i.e. 'The Rule of Law'.

10. Defence and other interests of Britain in Gibraltar would be negotiated by Britain and Spain and we are assured by a British representative who formed part of Lord Shepherd's party on his recent visit to Gibraltar that defence interests are no obstacle to a negotiated settlement.

11. Gibraltar is to be granted a constitution which gives it complete and utter autonomy in law-making and law-enforcement guaranteed by

627
the two parties of the Treaty—Britain and Spain, and if necessary UNO, in settlement of the decolonisation problem pending there.

12. The British flag would not for a split second be hauled down in Gibraltar. Gibraltar could also fly its own flag in recognition of the vested rights of the Gibraltarian and, as a symbol of the fact that the Gibraltar described above owes its origin to a new Anglo-Spanish Treaty, the Spanish flag would also be hoisted."

Is there anything terrible about that? Later in the same letter the writers add—and they are men of extreme honour; I know them all personally:
"We went to Madrid to ascertain whether they"
that is, these proposals,
"were acceptable to Spain and we were assured by the Foreign Minister, Senor Castiella himself that they were."
Surely on that basis there must be grounds for a negotiated settlement. We in this country are not with so many friends that we can afford to do without possible friends such as Spain. We shall not be giving up Gibraltar; we shall be turning the whole of Spain into our Gibraltar. Surely, we are two great peoples with so very much to offer each other that more efforts ought to be made to reach a satisfactorily negotiated settlement.
6.24 p.m.
LORD MERRIVALE: My Lords, when I put down my name to speak to Lord Moynihan's Unstarred Question I thought that we were being asked to consider the Castiella proposals. It seems that, in effect, we are being asked to consider the proposals of the "doves". I understand that initially there were five doves; then there were only four. So it does not seem that, in so far as we are concerned, we are really being asked to consider seriously the proposals of Señor Castiella.
My opening remarks in this debate will be to echo the warm words of welcome addressed to Admiral of the Fleet Sir Varyl Begg by Sir Joshua Hassan and Mr. Peter Isola on his arrival in Gibraltar last Thursday as the first naval Governor and Commander-in-Chief, when they also stressed the overwhelming importance of the link of Gibraltar with Britain. Also, the fact that for the first time in history a naval officer has been appointed to this important post may highlight the im-
628
portance of Gibraltar to NATO from a naval point of view. Of course, the association of the Navy with the Rock dates back many a year. I think the new Governor has an important task in front of him for, as Mr. Peter Isola said last week, his period of office will see Gibraltar launch itself into a period of constitutional change and of Parliamentary democracy that it has not previously experienced. I think the new Governor—and I say this with respect—may even care to heed the following words taken from last week's El Calpense:
"Definitely, Sir Varyl, your main object if you want to help us is to neutralise the enormous influence of our pro-Spanish enemies in London."
Turning now to the subject of our debate this evening, I should like, if I may, to quote from the speech of the noble Lord, Lord Caradon, before the General Assembly on December 18 last. I apologise for quoting this speech, but it is most relevant and a very important speech, and I think this extract is important. The noble Lord, Lord Caradon, said:
"We believe in the principle stated in Chapter XI of the Charter that the interests of the inhabitants should be paramount; we believe moreover that the requirement in the Charter (to develop self-government; to take due account of the political aspirations of the peoples and to assist them in the progressive development of their free political institutions) meant what it said."
He went on to say;
"We see no cause to exclude the people of Gibraltar, a small but proud and brave people, from the protection of the fundamental provisions of the Charter. We believe that the policy adopted by Spain, directed against the people of Gibraltar, the policy of attempting by restriction and harassment to intimidate and coerce and harm the people has been misconceived and misdirected. Indeed by alienating instead of attracting the people that policy has militated against any positive progress."
My Lords, bearing in mind Spain's long record of restrictions against Gibraltar in the realm of withdrawal of Spanish labour, of curtailment of tourism, of frontier closures, of cancellation of trade, of over-flying bans, of harassment of merchant shipping, of social and cultural prohibitions, and of harmful political and psychological activities, it is certainly curious that we should be asked this evening by the noble Lord, Lord Moynihan, whether Her Majesty's Government will implement Resolution 2429 of December last, and whether Her Majesty's

629
Government will negotiate with the Spanish Government to find a solution "based on the Castiella proposals".
Over the last four years, that is, in December, 1965, December, 1966, December, 1967, and December, 1968, resolutions appertaining to the "question of Gibraltar" have been adopted by the General Assembly with a total disregard for paragraph 2 of Resolution 1514 of December 14, 1960. That Resolution says:
"Declaration on the granting of Independence to colonial countries and peoples".
Paragraph 2 reads:
"All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."
On this score, no conciliation whatsoever has been apparent on the part of the Spanish authorities, and to-day it would appear that the noble Lord, Lord Moynihan, is asking Her Majesty's Government to go back on their word—that is, Her Majesty's Government's word, as expressed by the noble Lord, Lord Caradon, when he said on December 18 last that it was a matter to be deplored that a number of delegations should have supported a proposition which they know "will not and cannot be put into effect."
I believe that the resolution which we are considering this afternoon was originally tabled in the Fourth Committee on November 21 last by Ecuador—and this is something to which the noble Lord, Lord Moynihan, referred—in the main by a number of Spanish-speaking countries.
LORD MOYNIHAN: My Lords, perhaps the noble Lord will correct that. I think that "in the main" points to a majority, and this was certainly not the case as my figures showed. It was "in the main" by non-Spanish speaking countries.
LORD MERRIVALE: My Lords, I suppose one could ask: how long is a piece of string? What I am referring to is the original resolution tabled before the Fourth Committee on November 21. I am not refering to the voting before the General Assembly. In view of this support of the Spanish-speaking countries, to which the noble Lord referred, I suppose it is no wonder that they agreed
630
that Gibraltar should be handed over to Spain, over the heads of the people of Gibraltar and regardless of their wishes.
I hope most sincerely that the Minister will stand firm this evening, remembering that the resolution which was carried on December 18 last was considered by the noble Lord, Lord Caradon, to be a "dead end of one road". The road that now lies ahead is one which I trust will see an early publication of the Order in Council, incorporating the with Great Britain in the preamble; the early putting into effect of the constitutional changes; and an early General Election to hasten the process of decolonisation. I should like to ask the Minister whether he can be very specific when he replies, and say when the Order in Council will be tabled, when it will come into effect and when a General Election will be held. Can the Minister also confirm a statement in Time Times of July 25 last, that the word "colony" is to be removed from Gibraltar's passports, with Gibraltar remaining one of Her Majesty's Dominions?
Regarding the General Election, I should like to assure your Lordships that, according to information received, there is now absolutely no cause whatsoever for delaying it, as since early March of this year there has been complete agreement between the Parties on the electoral system to be adopted. I should like to take this opportunity to express my sincere appreciation to Major Gache, a well-known and esteemed Gibraltarian for his assiduity in keeping Members of Parliament au fait and up to date with constitutional and electoral matters affecting Gibraltar and its people. Before turning briefly to the question of the Castiella proposals, I should like to stress that so long as the introduction of the new constitutional arrangements is delayed, so long, too, will it appear that the future of Gibraltar and the security of its people are both still open to negotiation on an international plane.
Anyone who has followed the Anglo-Spanish dispute for any length of time knows that the Castiella proposals have only one object—the transfer of Gibraltar to Spain. Equally, he knows that Britain has declined to hand over Gibraltar, because to do so would be to betray two principles, which, in effect, Her Majesty's Government have, quite

631
rightly said many times cannot be betrayed: first, that the interests of the inhabitants are paramount; and, secondly, that the people of Gibraltar have the right freely to express their own wishes as to their future. This they certainly did in September, 1967, whether the noble Lord, Lord Moynihan, approves of it or not.
Spain has claimed that the Anglo-Spanish talks of March, 1968, were unilaterally broken off by Britain. Surely those talks failed because of Spain's insistence on discussions only on the basis of Resolution 2353 of December, 1967, which would have meant the immediate handing over of Gibraltar; so that, in effect, there would have been absolutely nothing to discuss. It is interesting to note that during the discussions last December in the Fourth Committee and in the General Assembly delegations made compromise proposals, but no compromise proposal was acceptable to Spain.
In conclusion, therefore, I hope that the Minister will this evening categorically reject the proposals of the noble Lord, Lord Moynihan, and will also state categorically that Her Majesty's Government intend to usher in a new Constitution at the earliest possible opportunity, and a Constitution which, for the first time, will allow local domestic matters to be decided—not merely advised on—by locally elected members. They will thus be ensuring this process of decolonisation, and making it clear to Spain that there is nothing to negotiate until such time as the Gibraltarians themselves say that they wish to negotiate with Spain.
6.37 p.m.
THE MINISTER OF STATE, FOREIGN AND COMMONWEALTH OFFICE (LORD CHALFONT): My Lords, I suppose I should say in the normal way that I am grateful to the noble Lord, Lord Moynihan, for giving us an opportunity to examine this question. In a sense I am, in that it enables me to restate as clearly as I possibly can the policy of Her Majesty's Government in this respect. I accept that the noble Lord, Lord Moynihan, is sincere when he protests that he has the interests of the Gibraltarians at heart in all this,
632
but I can only say—I hope without causing offence—that I think he has chosen a curious way of going about it.
Before I answer the noble Lord's Question specifically and categorically, perhaps I may take up one or two of the points which he made in his speech. He made the point, which I think is familiar to everybody who has followed this problem, that Gibraltar is geographically a part of Spain and should therefore be returned to Spain. I think that is the gist of one passage of his speech. Of course, if this were a valid argument, and if it were universally applied, we should have to do a great deal of redrawing of maps, and one of the places where we should have to redraw the map is in North Africa where, as the noble Lord will know, there are two Spanish enclaves. But I think this is really no more than a debating point, although a valid one, because in any event this so-called principle of territorial integrity is a very suspect one, and in my view gives way every time in international affairs to the overriding human factor in any problem of this kind.
We were also given by the noble Lord, Lord Moynihan, a great deal of insight into the way he looks at the United Nations' resolution. He analysed the votes and he told us that there had been a great majority in favour of this United Nations' resolution. I shall come to the resolution itself in a moment, but in any case I hope not to keep your Lordships too long. However, there is one thing I would say about any resolution of the General Assembly of the United Nations. As the noble Lord will know, it has the force of a recommendation only—no more—and when there is a conflict between a resolution of the General Assembly and the United Nations Charter (and there is such a conflict here, as was made clear by the noble Lord, Lord Merrivale) the Charter itself, in Article 103, provides that obligations under the Charter must prevail. I think there is no doubt that that is the case here, in that the resolution on Gibraltar, to which the noble Lord referred, is in direct conflict with our obligations under the Charter.
The noble Lord also mentioned the unofficial proposals made by the group of people called the "Doves" in Gibraltar.

633
Of course, I make the point that these are not official proposals. There is no official confirmation that Senor Castiella, or any other member of the Spanish Government, will accept them. We are assured that they would; but these are unofficial proposals. Of course, we are not debating them tonight: we are debating particularly the Castiella proposals and the United Nations' resolution. But I would make it clear in this context that although we, Her Majesty's Government, are alone responsible for Gibraltar's external relations, any Gibraltarian or group of Gibraltarians is perfectly free to discuss their future unofficially with anyone, including the Spanish Government or Spaniards. They can discuss their future unofficially with anyone they please. They are, so far, free people, and it is no part of our policy to keep them apart from the Spaniards or to prevent them from making this kind of proposal. Indeed, we recognise the need to improve relations on the spot; and, as I shall underline in a moment, we have tried to impress this on the Spanish Government as well.
I should like to dismiss in a few words one irrelevant point (I am not suggesting that it was irrelevant in the context of the noble Lord's speech, but simply that it is dragged into this argument often), and that is our military situation in Gibraltar. Let me make it clear that Her Majesty's Government's policy in Gibraltar is based solely on the interests of the people in Gibraltar. It has no military considerations whatsoever.
There was one other point which I hope the noble Lord will not think too much of a debating point, but he quoted the authority, the admittedly eminent authority, of Salvador de Madariaga as supporting the argument that Gibraltar should be handed back to Spain. I am sure there may be some of your Lordships who ask whether it is not perhaps inconsistent, or at least easy, for Señor Salvador de Madariaga to suggest that the Gibraltarians should live under a régime under which he himself is not prepared to live.
My Lords, the noble Lord, Lord Merrivale, asked me to re-state firmly the Government's policy on this matter, and I shall do so. He need have no fear that we shall not stand firm on this issue. But before I tell him exactly how, per-
634
haps I could answer the two questions which he specifically asked me. The first was about the Order in Council which will bring in the new Constitution. We have said, or it has been said in another place, that this Order in Council will come into effect before the Summer Adjournment, and that remains the position.
LORD MERRIVALE: My Lords, I am sorry to interrupt the noble Lord but that is rather vague, in that quite a number of weeks have elapsed since that was stated on March 17. Could not the noble Lord be a little more specific? I understand that there are rumours that the Order will be published about the first week in May. Is there any truth in that?
LORD CHALFONT: The noble Lord will, I hope, know me better than to suppose that I am going to confirm any rumours of that kind. I can only say —
LORD MERRIVALE: Can the noble Lord be more specific then?
LORD CHALFONT: I am sorry, but I cannot be more specific than to say that it is still our intention to bring the Order in Council into effect before the Summer Adjournment. I am afraid I shall have to ask the noble Lord to be patient for more detailed information than that. As for the General Election, I am afraid that this is perhaps equally unspecific; but we do expect it to take place early this Summer.
LORD MERRIVALE: I am very sorry to interrupt the noble Lord again, but could he then say whether the Order in Council will come into effect immediately it is laid?
LORD CHALFONT: That is one of those question which sounds as though it has a catch in it. All I can say is that we hope it will come into effect before the Summer Adjournment, so I hope that the question of the actual laying of the Order is of secondary importance.
Before I finish by reiterating our policy on this subject perhaps I may mention one point—the rather curious question put by the noble Lord, Lord Moynihan, when he asked: If the Government of Spain were freely elected, would we then be prepared to negotiate with it over the future of Gibraltar? The noble, Lord spoke of a series of red herrings in his

635
speech. He even spoke of one red herring that would not hold water, which I should have thought was an occupational hazard in the herring's line of business. I think that his question is really the biggest red herring of all, because it is a hypothetical question that no one—no sensible politician—would ever be lured into answering.
But may I make one point on it. and it is this. I think it extremely unlikely that there will he much confidence at the moment in the minds of Gibraltarians that their affairs would be democratically handled if they agreed to pass under the present Spanish régime. I would go no further than that; but what I would say is that we are not concerned with the hypothetical case of what would happen if there were a freely elected Government in Spain. We are concerned with the present position, and, to answer the noble Lord's question directly, we have made it plain—and I will make it plain again —that the United Nations resolution (No. 2429) to which he refers, adopted by the General Assembly last December, is unacceptable to us. Whatever the figures of the voting may have been, and however adroitly he may analyse them, the resolution—and I am grateful to the noble Lord for reading it out to your Lordships' House; it saves me the necessity to do so—embodies what is to me the incredible proposition that by October 1 of this year the people of Gibraltar should be handed over, against their freely and democratically expressed wishes, to a Government which has deliberately harassed them and deliberately and continuously damaged their interests. I find that an incredible proposition.
To implement it, as I said before, would be to ignore our obligations under the United Nations Charter, which are, as the noble Lord, Lord Merrivale, has pointed out, to regard the interests of the Gibraltarians as paramount. I think that the sterile and unconstructive nature of last December's resolution is underlined by the fact that the Spanish Government rejected the possibility of securing an alternative resolution which might have enabled us to return to a course of conciliation and co-operation. It is not at our door that any failure of these discussions and negotiations can be laid.
636
The noble Lord has asked in the second part of his Question whether we will negotiate with the Spanish Government on the basis of what he calls the Castiella proposals; that is to say, the proposals put forward by the Spanish delegation at the Anglo-Spanish talks on Gibraltar in 1966. We made our attitude to those proposals clear at the time, and it is indeed fully set out in the Command Paper that was presented to Parliament in that year. My right honourable friend the Foreign and Commonwealth Secretary explained our view that these were important and serious proposals which might go some way towards meeting the interests of the people of Gibraltar. But at the same time it was made quite clear to the Spanish Government that no radical solution was possible in the state of opinion which then prevailed in Britain and in Gibraltar itself and—and this is important—so long as the difficult situation on the spot existed.
May I interject here the point that in the referendum of September, 1967, which was a freely, democratically-held referendum, the people of Gibraltar, were given the option of passing to Spain under the terms of the Castiella proposals. They categorically rejected that option. So we pointed out to the Spaniards that the key to progress lies—it lay then and it still lies—in restoring friendly relations between the people of Spain and the people of Gibraltar; and we made certain proposals which were directed to that end.
My Lords, this is how we still look at this question. Anybody who is interested in seeing this dispute resolved in a way that is satisfactory to both Governments and acceptable to the Gibraltarians will obviously regret that the Spanish Government have ignored what we said to them in 1966. So far from setting out to improve relations between themselves and Gibraltar, they have acted in a way that has totally undermined confidence in Spanish intentions. Their campaign of harassment and pressure has been steadily intensified ever since, and the closure of the frontier in May, 1968—the last of a long series of actions of this kind—was in my view totally inconsistent with the concern which they professed to feel for the interests of the Gibraltarians.
LORD MOYNIHAN: My Lords, if I might interrupt the noble Lord, would he not accept that the closure of the frontier is indeed stipulated in the Treaty of Utrecht? That is one thing which the Government have never admitted, and it is there in black and white, I forget the exact words, and I do not have it in front of me, but it says that there shall be no land frontier between Gibraltar and the surrounding territories. So, in fact, they have done nothing except enforce the Treaty of Utrecht.
LORD CHALFONT: My Lords, I am sorry to quote the noble Lord back. He himself said in the course of his speech that the Treaty of Utrecht was outdated. I now understand him to be invoking the Treaty of Utrecht to justify —
LORD MOYNIHAN: My Lords, two wrongs do not make a right.
LORD CHALFONT: My Lords, that is a sentiment to which I can heartily subscribe; but I am not quite sure how it advances the noble Lord's cause. The fact about the frontier is that the Treaty of Utrecht could make it appear justifiable that the frontier should be closed in the purely juridical sense. But surely the noble Lord realises (even if we leave his point about the Treaty of Utrecht being out-of-date) what has happened since then. The commerce that has taken place across those frontiers, the hundreds of years of free commerce, which has been in the interests of the Spaniards and the Gibraltarians equally, makes it indefensible that the frontier should now be closed in the interests of some political aim. That is the view of Her Majesty's Government. It seems to me, as I say, quite inconsistent with the concern that the Spanish Government profess to feel for the interests of the Gibraltarians.
My Lords, the present dispute is not in anyone's interests. We regret that while the Spaniards sometimes say they are ready to safeguard the interests of the Gibraltarians, the Spanish Govern-
638
ment are all the time wielding the big stick of political and economic pressure. Our policy must be to do what we can to persuade the Spanish Government to realise that they must take the first steps towards the creation of an atmosphere in which we can progress towards some kind of settlement. As my right honourable friend the Minister without Portfolio, Mr. Thomson, has said in another place, if at some future time it seemed that to hold talks with the Spanish Government would help the Gibraltarians and bring a solution nearer, we should use that chance. We are not rigid and inflexible about this. It is no part of our policy to keep the people of Gibraltar apart from those of Spain, nor to weaken the many traditional contacts between Gibraltarians arid Spaniards.
I hope that I may conclude on a constructive note by saying that in the light of what has been said in this House this evening, and in the light of the facts, I hope that when the Spanish Government consider these things they will perceive that it rests with them to get us away from the negative policy of pressure and mistrust, and that it is up to them to get us on the road which may one day bring a solution to this question.

MEDICAL BILL [H.L.]
BARONESS LLEWELYN-DAVIES OF HASTOE: My Lords, on behalf of my noble friend Lady Serota, I beg leave to introduce a Bill to amend the Medical Act 1956, and for connected purposes. I beg to move that the Bill be read a first time.
Moved, That the Bill be now read 1a.—(Baroness Llewelyn-Davies of Hastoe.)
On Question, Bill read 1a, and to be printed.
House adjourned at six minutes before seven o'clock.