Lords Sitting of 25 March 1970

Preamble
The House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Portsmouth.

KENYA ASIANS: COMMONWEALTH GOVERNMENTS' POLICY
LORD O'HAGAN: 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 whether they have used their influence to try and persuade the Governments of Australia and Canada to admit Kenyans of Asian origin as permanent settlers.]
THE MINISTER OF STATE, FOREIGN AND COMMONWEALTH OFFICE (LORD SHEPHERD): My Lords, I assume that when the noble Lord refers to Kenyans of Asian origin he does in fact mean United Kingdom citizens of Asian origin living in Kenya. Her Majesty's Government have made no representations to the Governments of Australia and Canada about admitting these people to those countries.
LORD O'HAGAN: My Lords, in view of the problems that we all know these people have been facing, can the Minister say whether he is satisfied that the procedures for admission initiated by the 1968 Act are enough, and whether he feels that we all ought to do anything we can to help Kenya Asians who are British subjects to find somewhere to live?
LORD SHEPHERD: My Lords, Her Majesty's Government take the view that the responsibility for United Kingdom citizens is that of the United Kingdom and of Her Majesty's Government, and mat the immigration policies of Australia and Canada are an internal matter. As to whether we are doing enough, as I said to the noble Lord
1404
yesterday we have problems, we are seeking time in order to put those problems right and we hope that those in Kenya will await their turn.

PROPOSED NEW PRISON AT DENBURY
2.37 p.m.
LORD CLIFFORD OF CHUDLEIGH:
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 why, and for what class of criminal, they propose to open a prison at Denbury, South Devon.]
LORD BESWICK: My Lords, many new prisons are needed to relieve over-crowding in existing prisons and to accommodate the expected increase in the prison population. The disused camp at Denbury, which is already Government property, could be converted relatively quickly and inexpensively for prison use. The possibility of adapting it as a closed prison for men not in the highest security categories has been raised informally with the local authorities concerned and a meeting with them has now been arranged. Their views, and any others that may be expressed, will be taken fully into account. No decisions have yet been taken.
LORD CLIFFORD OF CHUDLEIGH:
My Lords, I thank the noble Lord for his reply. While appreciating the Government's difficulties in coping with the record crime wave since they took office, may I ask him the following supplementary questions? Why has the Home Office picked on Devon, which already has more than its fair share of national corrective establishments, when there are other counties with none or next to none? Why choose a holiday area full of retired people who are naturally very apprehensive? Why choose an area now suffering from a record number of unemployed, which would make rehabilitation more difficult? Is he aware of two facts which affect the situation; that only a fortnight ago a prisoner from—
THE LORD PRIVY SEAL (LORD SHACKLETON): My Lords, I wonder whether the noble Lord would allow my

1405
noble friend to answer at least his first four supplementary questions?
LORD BESWICK: My Lords, I am aware that the Government are tackling the crime situation. I am equally aware of the support that the noble Lord is now giving to us. It seems to me, on the general question, that prisons have something in common with airports—everybody thinks that they are essential, and nobody wants them in his county.
LORD WYNNE-JONES: My Lords, would my noble friend agree that the Government would make every attempt to have those on the highest social standing in such a prison?

PORT FACILITIES FOR LARGE ORE CARRIERS
LORD CLIFFORD OF CHUDLEIGH: 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 what ports and facilities are proposed or available in the United Kingdom for dealing with 300,000 ton bulk ore carriers.]
LORD SHEPHERD: My Lords, there are none at present, so far as the Government are aware. The initiative in port development rests with the port authorities. Where new terminals are wanted for specific purposes it is for the affected industries to discuss their needs with the port managements concerned.
LORD CLIFFORD OF CHUDLEIGH: My Lords, I thank the noble Lord for his Answer. May I ask whether he is aware that in the North-West of Australia there is a practically limitless amount of very high grade iron ore? Will the Government take steps to see that the British steel industry does not miss out on this bonanza to the Japanese and Americans, as will happen unless the necessary port facilities are arranged? Will he further give an assurance that there will be no threat of a limitation on British investment in these exciting enterprises?
LORD SHEPHERD: My Lords, I must be frank. I have watched the reports
1406
of the Australian Stock Exchange, but I really do not see how those two supplementary questions can be related to the Question on the Order Paper.
THE EARL OF LAUDERDALE: My Lords, is the noble Lord aware, and content, that Scotland's first imports of Australian ore have come via Rotterdam, and that one-sixth of this country's grain already comes by that route?
LORD SHEPHERD: My Lords, again I do not see how that supplementary arises from the Question on the Order Paper.
LORD CARRINGTON: My Lords, would not the noble Lord agree that since there is a limit to the size of a ship which can navigate and sail in the North Sea there might be an opportunity for British ports, by the development of a port such as my noble friend suggests, to recapture some of the ground they have lost?
LORD SHEPHERD: My Lords, if the noble Lord will look again at the Answer I gave originally he will see that this is a matter about which the industries directly concerned should consult the appropriate port authority. For instance, in Tees and the Hartlepools there has been an agreement between the British Steel Corporation and the authority for a new terminal on Tees-side to take initially vessels of 100,000 deadweight tons, to come up to 250,000 deadweight tons. That is an example of what I indicated in my original Answer should be done.
THE EARL OF LAUDERDALE: My Lords, is the noble Lord aware that three and a half years ago the National Ports Council proposed to the Government that there should be studies on this matter, and can he say whether those studies will extend to a cost benefit study, such as has been under consideration?
LORD SHEPHERD: My Lords, studies have been undertaken, and I look for-ward to the noble Earl's support when we have the Ports Bill before this House for approval.
LORD REA: My Lords, does the noble Lord not agree that not only Tees-side but also other ports, both in the British Isles and in Southern Ireland, are already

1407
hoping to make forward-looking arrangements for cargoes of this size?
LORD SHEPHERD: My Lords, again I hope that, with the noble Lord's support, we shall get the Ports Bill through the House.
THE EARL OF LAUDERDALE: My Lords, is the noble Lord not aware that the Ports Bill has nothing to do with this matter?
LORD BLYTON: My Lords, is my noble friend aware that I think that the Government are concentrating too much on Tees-side and too little on Tyneside?
LORD SHACKLETON: My Lords, asking my noble friend Lord Shepherd whether he is aware of some secret thought of my noble friend is not strictly in order. Could my noble friend pose a question related to the original?
LORD BLYTON: My Lords, I always put my questions quietly and in a few sentences. Could my noble friend say why he cannot urge the Steel Board not to neglect the Tyne and Tyne Docks, and South Shields, and to bring iron ore to Tyneside?
LORD SHEPHERD: My Lords, with permission, I will consider the point made by my noble friend and perhaps communicate with him.

COAL MINES AND EMERGENCY WINDING GEAR
2.45 p.m.
VISCOUNT MASSEREENE AND FERRARD: 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 whether, in view of the failure, owing to snow, of the electric-powered winding gear at the Kent coalfields earlier this month, they will ensure that in future all mines have an alternative means of power for bringing men to the surface.]
THE MINISTER OF STATE, MINISTRY OF TECHNOLOGY (LORD DELACOURT-SMITH): My Lords, immediately after the event, the Chief Inspector of Mines and Quarries initiated a full-scale review of the arrangements
1408
for emergency winding in the event of power and other failures. When this is complete my right honourable friend the Minister of Technology will consider whether it is necessary to make regulations under the Mines and Quarries Act governing the provision and maintenance of standby equipment.
VISCOUNT MASSEREENE AND FERRARD: My Lords, while thanking the noble Lord for that very helpful Answer, may I ask whether he does not agree that it might be a good idea to have reserve generators at all pits, in case a similar emergency occurs in future, especially in East Kent, where we get such heavy snowfalls?
LORD DELACOURT-SMITH: Yes, my Lords. Where a colliery relies on power from public supply, it is already the practice to have duplicate lines from separate substations, and to guard against total failure auxiliary generators are available. However, in this case the factor was that very severe weather prevented some of the auxiliary plant from being brought into operation.
LORD POPPLEWELL: My Lords, can my noble friend say whether the report of the inquiry will be made public or whether it will be a departmental report, in which case we shall have to wait for a White Paper before we have knowledge of it? This is an important question, and it is important to allay any public disquiet that might have been felt over this case.
LORD DELACOURT-SMITH: My Lords, the report is to be a comprehensive one and I can assure my noble friend that action will be taken upon it.
VISCOUNT MASSEREENE AND FERRARD: My Lords, would not the noble Lord agree that there is not much point in having auxiliary generators if they are not all at the pits? Would he not agree that it is essential to have diesel generators completely separate at the pits, and not to have to drive them four or five miles from other pits with the chance that they may not get through?
LORD DELACOURT-SMITH: My Lords, in the case under consideration, at one of the collieries the emergency equipment was only 100 yards from the shaft, but the weather conditions were

1409
such that it was not possible to make it fully effective.
LORD BLYTON: My Lords, is my noble friend aware that although spending twelve hours in a shaft is a horrible experience, which I have had, these things do happen and no one can blame the Government. We cannot put generating stations at every pit and there is still equipment in the pit shaft to bring men up. I think that on this issue everybody is making a mountain out of a molehill.
LORD DELACOURT-SMITH: My Lords, your Lordships will appreciate the point that my noble friend has made. Nevertheless, I am sure you will equally agree that, in the light of this experience, there ought to be a comprehensive review to make sure that arrangements are as good as they can be made.

BARCLAYS BANK D.C.O. BILL [H.L.]
Read 3a, and passed, and sent to the Commons.
MERSEY DOCKS AND HARBOUR BOARD BILL [H.L.]
Read 3a, and passed, and sent to the Commons.
NORTH RIDING COUNTY COUNCIL BILL [H.L.]
Read 3a, and passed, and sent to the Commons.
NEWPORT CORPORATION BILL
Read 2a, and committed to the Committee on Unopposed Bills.

HOUSE OF LORDS OFFICES
2.50 p.m.
THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL): My Lords, I beg to move that the Second Report from the Select Committee be now considered.
Moved accordingly, and, on Question, Motion agreed to.
The Committee's Report was as follows:
1. PRAYERS
The Committee have considered, in consultation with the Archbishop of Canterbury, a proposal for a variation in the form of Prayers at present in daily use in the House of Lords. They recommend, as an experiment to be carried out until the end of July, that authority be given to the Lord Bishop who is reading Prayers for the day to open the reading of Prayers with any one of the following Psalms, at his discretion: 24, 46, 67, 93 or 111, in place of Psalm 67, which at present alone stands appointed for daily use; and that no other variation be made for the time being in the daily form of the Prayers.
2. LIBRARY
The Report from the Library Sub-Committee for the year 1969 was laid before the Committee and agreed to.
3. PARLIAMENT OFFICE
The Committee considered the extra assistance required by the Examiner of Acts for the reading of Private Bills and Measures and authorised the appointment of an additional Personal Secretary in the Parliament Office for this purpose and to assist in the Secretarial work of the Office generally.
4. REVISED SCALE OF PAY
The Committee sanctioned the application of Establishment Circular D.E.O. (70) (PAY) No. 2—Paperkeeping Grades—Revised (Interim) Scales of Pay to the grade of Attendants, House of Lords.
5. HANSARD REPORTING STAFF

(a) Select Committees on Public Bills

The Committee were informed of the arrangements for the mechanical recording and reporting of proceedings of Select Committees on Public Bills.

The Committee authorised the employment of temporary staff, when required, and extra payments to Permanent Reporters acting as Sub-Editors.

(b) Typing for Debates

The Committee authorised the payment of increased charges under the Agreement with Haynes Secretarial Services for the supply of typists for the Reporting of Debates.

6. HOUSE OF LORDS' JUDICIAL FEES
The Committee approved a revision, with effect from 1st April, 1970, of:—

(a) the Schedule of fees payable on Judicial proceedings; and

1411

(b) the taxing fees payable upon the sums allowed by the Taxing Officer of Judicial Costs.

The Committee recommend that the fees at (a) above be doubled; and that the fees at (b) above be charged at 2½ per cent. on the whole of the amount allowed by the Taxing Officer on Judicial bills of costs in place of the present charge of 2½ per cent. on the first £ 300 and 1 per cent. thereafter.
The Committee further recommend that the use of adhesive stamps on Judicial documents be discontinued.
7. DOORKEEPERS
The Committee authorised an increase in the allowances for the purchase and maintenance of dress clothes accessories.
8. SUPPLEMENTARY ESTIMATE 1969–70 AND REVISED ESTIMATE 1970–71
The Committee approved the Supplementary Estimate 1969–70 and the revised Estimate 1970–71.
9. SUPERANNUATION
The Committee sanctioned the payment of the following awards under the Superannuation Act, 1965: —

(a) Gratuity to Mrs. Lilian Maude Wildego, Housemaid, who resigned on the 7th February. 1970.

(b) Gratuity to Mrs. Annie Kathleen Vollar, Housemaid, who resigned on the 14th February, 1970.

THE EARL OF LISTOWEL: My Lords, I beg to move that this Report be agreed to. In moving this Motion, I should like to draw the attention of the House to Item No. 1, dealing with the Prayers with which every Sitting of the House begins. This is a matter that concerns the whole House, and it is for the House to decide what form of Prayers should be used. At its last meeting, the Offices Committee considered a proposal by the right reverend Prelate the Bishop of Chester for a variation of the present form of Prayers. After some discussion, in which the Committee had the assistance of the most reverend Primate the Archbishop of Canterbury, the Committee decided to recommend no change in the Prayers themselves, but as an experiment until the end of July it is proposed to give the right reverend Prelate who is reading Prayers for the day a choice of Psalm at his discretion.
If your Lordships agree to this experiment, it will be again for the House to decide at a later stage whether it likes the experiment and wishes to continue the practice. No permanent change is
1412
being proposed for the time being. I beg to move.
Moved, That the Report be agreed to.—(The Earl of Listowel.)
THE LORD BISHOP OF PORTSMOUTH: My Lords, am I to understand that the choice of Psalm is to be from the whole Psalter, or is there to be a limited number from which the choice can be made?
THE EARL OF LISTOWEL: My Lords, in reply to the right reverend Prelate, I understand that the choice of Psalm will be from a group of Psalms from which the right reverend Prelate of the day will make his own choice.
THE LORD BISHOP OF PORTSMOUTH: My Lords, I merely want to avoid the possibility of the House having Psalm 119.
LORD SORENSEN: My Lords, may I ask the noble Earl whether the Committee will consider that, in place of the Psalms or any other prayers, we might at times have a period of silence when we can meditate as we please?
THE EARL OF LISTOWEL: My Lords, the noble Lord, like any other noble Lord, is entitled to ask the Offices Committee to consider any matter that he wishes it to consider. If he wishes the Offices Committee to consider this proposal, I will certainly see that it is on the agenda for a meeting of that Committee.
LORD PARGITER: My Lords, may I ask my noble friend whether or not the spiritual needs of the House might be met by Prayers once a week?
SEVERAL NOBLE LORDS: NO.
LORD CAMOYS: My Lords, the right reverend Prelate the Bishop of Chester is a friend of mine. As a Roman Catholic I like Prayers as they are, and I attend whenever I am here in time. I do not want a change.
THE EARL OF LISTOWEL: My Lords, in reply to noble Lords, may I say that I am sure the Offices Committee will be glad to hear any suggestion that they may wish to make.
LORD REA: My Lords, may I ask the noble Earl whether this is now the time

1413
to register any protest or dissent, and whether if the House does not do so this experiment will be put into practice?
THE EARL OF LISTOWEL: My Lords, yes; the noble Lord is quite correct. Unless any noble Lord objects, this practice will continue.
LORD TAYLOR OF MANSFIELD: My Lords, will the proposed reading of the Psalms be from the Authorised Version or from the New English Bible?
THE EARL OF LISTOWEL: My Lords, I am afraid that that is a question I cannot answer without notice.
LORD SOPER: My Lords, who will be responsible for drawing up the body of Psalms from which the right reverend Prelates will have a selection?
THE EARL OF LISTOWEL: My Lords, I am afraid noble Lords are catching me out with some of their questions. If your Lordships would refer to Item No. 1 of the Report you will see that five Psalms are specified in place of Psalm 67, which at present stands alone for daily use. The choice will therefore be made from that group.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, your Lordships will see that Item 6 of this Report is concerned with judicial fees, of which there are two kinds: first, fees payable at various stages of appeals; and secondly, the fees payable on taxed costs. In an ordinary year the whole provision for the Supreme Court and for the county court is met out of the fees payable in those courts, except for the remuneration of the judges, which is, of course, paid out of the Consolidated Fund. That happy position has never obtained in appeals to your Lordships' House. The general fees have remained substantially the same since 1922, a period of nearly half a century, and the fees on taxation are based on percentages fixed in 1887.
The amounts that these fees produce are small. The fees on judicial proceedings produce, on average, about £ 1,300 a year, and taxing fees about £ 560 a year. The sums are appropriated to the House of Lords Vote. The increases which the Offices Committee have recommended will have the effect of bringing the House of Lords fees broadly into line with the corresponding fees charged in the
1414
Supreme Court. They represent, in my view, a reasonable increase in the modest contribution which parties to appeals in this House make towards the cost of the administration of justice. If the House approves this increase, as I hope it will, I shall be moving the necessary Amendments to Judicial Standing Orders tomorrow.
On Question, Motion agreed to.

AGRICULTURAL LAND DISPOSAL AND "CRICHEL DOWN" POLICY
2.58 p.m.
LORD OAKSHOTT LORD OAKSHOTT rose to call attention to the important departure, in February 1966, from the "Crichel Down" policy announced in the House of Commons on July 20, 1954, regarding disposal of agricultural land originally acquired under threat of compulsion and later found to be surplus to public requirements, a change of policy made without Parliament being informed; and to move for Papers. The noble Lord said: My Lords, I rise to move the Motion standing in my name on the Order Paper. As your Lordships will see, it calls attention to the important departure in February, 1966, from the so-called "Crichel Down" policy which was announced in another place in July, 1954. That policy, as your Lordships may remember, dealt with the disposal of agricultural land originally acquired by compulsion or under threat of compulsion and later found to be surplus to public requirements. The 1966 change was made without Parliament being informed.
It is quite true that in 1957 and 1958 what was called a clarification of this policy was brought about. In a Written Answer by the Financial Secretary to the Treasury on March 3 last, in answer to the honourable Member for Ludlow, Mr. Jasper More, the Financial Secretary to the Treasury said:
"… it was decided to take into account any interest which non-departmental public authorities or local authorities might have in acquiring such land."—[OFFICIAL REPORT, Commons 3/3/70, col. 79.]
I am not quite sure what that signifies, but I take it that if, for example, a local authority considered it essential to acquire certain land and were prepared to exercise compulsory powers of acquisition, that land would fall outside the Crichel

1415
Down procedure. In other words, the change conferred on this type of authority the same powers already enjoyed by a Government Department which wanted to acquire land held but no longer needed by another Government Department. This power was in fact provided for in 1954 in the speech of my noble friend, the then Minister of Agriculture. However, I must say that the fact that the change was not announced in Parliament is regrettable.
But something much more serious than this was to follow, because in February, 1966, without Parliament's ever being informed, a completely new consideration was introduced: planning permission. It was decided then that land should not be regarded as agricultural in character if the local planning authority had given, or indicated that it was prepared to give, planning permission for the development of the land. That was a major departure from the Crichel Down policy, and, as I say, it was never disclosed in Parliament.
Let me now very briefly recall to your Lordships the matter of the land at Compton Bassett, in Wiltshire. There are 36¾ acres of this land. It belonged to the late Mr. Henly and in 1942 it was acquired by the Air Ministry, under threat of compulsion, at £ 41 an acre. When it was found that the land was no longer needed, it was not offered back to Mr. Henly's son, but was consolidated with 70-odd acres of adjoining land, and the whole was sold at auction for about £ 470 an acre. There was sand on those 36¾ acres, and the existence of that sand was known at the time of the original acquisition by the Air Ministry.
Mr. Henly's son, and the Henly family, could not and would not have expected to pay other than the current market price for those 36¾ acres—I do not think that is in dispute—but they never had the chance to do so: their former piece of land was never offered to them separately by the Ministry of Defence. That was the point of the supplementary question put on March 9 last by the noble Lord, Lord Beaumont of Whitley, about land being offered separately to the original owner. The family were never given the chance to buy their own land back. They attended the auction; they
1416
made a bid, but the £ 50,000 for which the whole auction lot of over 100 acres was sold was beyond their means.
On the face of it, it seems that something has gone very wrong here and that a serious injustice has been done. I submit that the original parcel of land should have been offered back to the original owner—or, in this case, the original owner's successor. If it had been, and if Mr. Henly's son had paid the district valuer's valuation price, which I presume would have been somewhere near the auction price if the district valuer knew his business, as I am sure he did, the State would have benefited, as it is going to do now as a result of the auction, first, by the tenfold difference between the £ 41 an acre paid by the Air Ministry in 1942 and the £ 470-odd an acre realised at the auction, and then possibly by the capital gains tax, certainly by the income tax and surtax which Mr. Henly would have had to pay on the development profit of the sand. Then, what would have happened? Mr. Henly would have extracted the sand; the maximum depth of the sand face, I am told, is 20 feet, and in some places rather less. As the sand was extracted the ground would have been re-seeded within a year and the whole restored to agricultural use, and everybody would have been happy.
So much for the history of the land at Compton Bassett. May I return for a moment to the general situation? In a Written Answer in another place, on January 19 of this year [col. 63] the Financial Secretary to the Treasury said this:
"Land is regarded as outside the scope of these arrangements,"—
that is, the "offer-back" arrangements—
"which are intended for land which is to continue in agriculture indefinitely, if it is the subject of planning permission for development …"
In the speech of my noble friend Lord Crathorne, then Minister of Agriculture in another place, on July 20, 1954, whch laid down the post-Crichel Down code of practice, there is no mention at all, either of the land continuing in agriculture indefinitely, or of planning permission.
I will read to your Lordships what I think are the two relevant passages from my noble friend's speech. At colmun

1417
1192 he said—and this has already been quoted in this House:
" Nevertheless, the Government will in future consider each case on its merits with the desire that, where circumstances show that the land can properly be offered to a former owner or his successor who can establish his claim, this will be done at a price assessed by the district valuer as being the current market price."
Then, at column 1193, he said:
"Moreover, as I have just said, the Government have now made the important new decision that where a former owner or his successor can establish a special personal claim, he will, where possible, be given a special opportunity to buy land back when it is no longer wanted for Government purposes."
Nothing could be clearer than that. There is no mention of planning permission; there is no mention of the land's being predominantly agricultural, or remaining indefinitely in agricultural use. The policy statement of my noble friend has been "interpreted", or as they say now "clarified", by the introduction of these completely new considerations, and with-out Parliament ever being informed.
Yesterday, in a letter to The Times, the noble Baroness, Lady Burton of Coventry, who is the Chairman of the Council of Tribunals, raised what she rightly described as "a serious constitutional issue". I am sorry that the noble Baroness is not here to-day, but I under-stand perfectly that she cannot be here. I will paraphrase her letter. She said that the Crichel Down procedure of 1954 was accepted by Parliament. She went on to say that on March 9 in this House we were told of administrative clarification in 1957 and in 1958, and a further clarification in 1966. She then went on:
"If government repeatedly changes the procedure of what is accepted by Parliament as agreed and defined implementation of policy— and three cases have been quoted to us—then (a) what is the use of an agreed and defined implementation of policy and (b) to whom is government responsible for such changes? "
The 1957 and 1958 clarifications which the noble Baroness mentions are those to which I referred earlier on. I have already said that I think it is a pity that these modifications and clarifications (call them what you like) were not made known to Parliament. The 1966 change to which she refers was, in my view, very much more than a clarification: it was a major departure—the introduction of planning permission. Nevertheless, I
1418
agree very much with the noble Baroness in the general tone of her letter, and I would suggest that the answer to her second question, "To whom is government responsible for such changes?" is, quite simply, "Parliament".
I do not want to detain the House, but before I sit down there is just one other matter which I ought to mention. The case of the Compton Bassett land was referred to the Parliamentary Commissioner. I have a copy of his Report and I will quote just two sentences from it. In paragraph 4 he says:
"Since 1966, the Ministry of Defence, in common with other Government Departments, have been under instructions"—
and I underline those words, "have been under instructions"—
"which I have seen"—
that is, which the Parliamentary Commissioner has seen—
"that the 'offer back' procedure should not be applied to land which carries planning permission or approval (actual or indicated) other than for agricultural purposes."
And in paragraph 6 he says—
"I report that the Ministry of Defence in their handling of this case have acted in accordance with instructions which reflect current Government policy for the sale of surplus land by Departments. I have found no evidence of maladministration on their part."
Let me make it absolutely clear that I am in no way criticising the Parliamentary Commissioner's Report. I do not think, in fact, that it is within his province to examine and report on Government policy; I think it is only the administration of Government policy which he is entitled to look at. What I am criticising is the existence of these instructions, which by some administrative acts—Treasury Minute or something like that—without Parliament ever being informed, have brought about a major change of policy and appear to be brushing aside the rights of the individual.
I had intended to refer briefly to the report of a three-man Committee set up under the late Sir John Woods after Crichel Down by the then Government. With him sat the late Sir Maurice Holmes and the noble Lord, Lord Pilkington (then Sir Harry Pilkington); but as the noble Lord himself is going to speak in this debate, in order to save your Lordships' time I will not now talk about that. It is a good many years now since the end of the war and I do not want in any way

1419
to exaggerate the present size of the problem, but at some time or other this situation may well occur again. As time goes on it may well be that a case for particular changes can be argued; but the situation could well occur again. My purpose in raising this matter to-day is to urge most strongly that where these important departures from accepted codes of practice take place, affecting the rights of the individual, the instructions which bring those changes about shall always be made public and shall be disclosed to Parliament, so that those who will be affected by them shall know where they1 stand. My Lords, I beg to move for Papers.
3.14 p.m.
LORD HENLEY: My Lords, I must start by making a disclaimer: Mr. Henly spells his name in a different way from mine; I am not related to him and I do not know him. I am very sorry that the noble Lord who sits on the Woolsack, who is to answer for the Government, is to speak so late in this debate, particularly as we have already had certain answers from the Government. There has been a rather curious escalation in connection with this subject. We started with the noble Lord, Lord Winterbottom, who was obviously so ill at ease with his answer that it was almost totally incomprehensible. Then we went on to the noble Lord, Lord Beswick, whose answer, though comprehensible, seemed to me to be equally unhappy. Now we have come to the noble and learned Lord who sits on the Woolsack—and this is big stuff, is it not? Now, why? This is what my colleagues, my friends and I have wondered to ourselves.
What is it that the Government are afraid of in this issue that they have put the noble and learned Lord the Lord Chancellor in to speak, after the, no doubt, very adequate answers of the noble Lord, Lord Beswick? Why have they now gone one step further and put in the Lord Chancellor? I am bound to say that I do not know. I have puzzled my head over this these last few days to try to work out what the Lord Chancellor is going to say this afternoon.
LORD BESWICK: My Lords, perhaps I might answer that point: it is the simple principle of sharing the burden.
LORD HENLEY: Indeed, my Lords; what a heavy burden to the Government it must be! Since we do not yet know what the noble and learned Lord the Lord Chancellor is going to say, and what line he is going to take, we must fall back upon what the noble Lord, Lord Beswick, said.
The answer, or the excuse, of the noble Lord, Lord Beswick, really amounted to this. He said that there had been no substantial change here; that all that had happened was that this confidential Treasury Minute had been issued to clarify what was not already clear; that is, that land which is capable of early development is not agricultural land. This is what the noble Lord, Lord Beswick, said. He went on to say that no great principle which required publication was set out. Furthermore, he said that it was made known in Parliament and elsewhere whenever explanation had been sought; that it had been set out in letters to Members of Parliament. In another place, as the noble Lord, Lord Oakshott, has just reminded us, the Minister replying for the Government I think said something to the effect that it was outside the scope, if it was subject to permission for development.
The noble Lord, Lord Oakshott, went on to point out that the noble Lord, Lord Crathorne (as he now is), in his speech as Minister of Agriculture some years ago in another place, made no mention of this at all. If the noble Lord then made no mention of this at all, are the Government right in suggesting that this change is not a substantial one? Is it not indeed a basic change of emphasis? It is a change in interpretation as to the land in respect of which the Government feel themselves absolved from fulfilling their obligations under the "Crichel code ".
Many of your Lordships feel that the Crichel code itself was too narrow. It dealt only with agricultural land; it should have dealt with all land. When land is taken by compulsory purchase, or threatened compulsory purchase, from an individual for purposes of defence, or any other purposes in the public interest, then it should, when that public interest no longer obtains, be offered back to the original owner. This point was conceded so far as agricultural land is concerned; although, as I say, many of us think it

1421
should have been conceded in respect of all land. But this is not what we are talking about to-day; we are taking about the concession which was given to agricultural land and which now appears to be being whittled away.
The noble Lord, Lord Beswick, furthermore said that there was no great principle involved. Well, I do not quite know when a principle becomes a principle. It may well be that there is no high constitutional issue here, but if this is not a principle of some kind then I do not know what a principle is. The noble Baroness who is a friend of Her Majesty's Government thinks so too— I refer to the noble Baroness, Lady Burton of Coventry, whose letter to The Times was quoted by the noble Lord, Lord Oakshott. However, that is basically the answer that the noble Lord, Lord Beswick, gave us on behalf of the Government a fortnight ago, on March 9.
How is it, if he is right, that it has taken four years for this affair to emerge into the public view? He said that the position was set out, whenever explanation was sought, in letters to Members of Parliament. As your Lordships know, letters to Members of Parliament are in any event confidential. How was this explanation set out when it was sought? And how often was it set out?—I notice that the noble Lord is moving towards the Treasury Box to get the answer to that one. And what exactly did that setting out explain? It seems to me to be extraordinary that Members of Parliament, to whom this was set out in confidential letters, did not notice it before.
I cannot believe that there was a deliberate attempt to obscure what was going on. That would be really inconceivable in this country, and I do not believe it. But I wonder whether there was not an unconscious desire to obscure a change which, I suspect, the Treasury very much want. I do not know of course, but I get the impression that the Treasury have a kind of guilt feeling about Crichel Down; there is an unwillingness on the part of the Treasury to accept the fact that this was a great scandal and a cause célèbre, and there is a predisposition to regard the Crichel code not as something setting out the
1422
equitable rights of a citizen of this country but a sort of concession which, if you behave like a sea lawyer, will be taken away from you. In my imagination this is the feeling of the Treasury, but nevertheless I feel strongly that there is something very odd about the whole Treasury approach to this problem.
Even if Her Majesty's Government are right and it is not a substantial change, in the meaning of the term "substantial change", nevertheless it is a change which affects certain individuals so radically that if it had been made known it would have excited comment. My Lords, it has excited comment. There are nine speakers, five of whom are Queen's Counsel, one is the Lord Chancellor, another is an ex-Lord Chancellor and one is an ex-Home Secretary. If there has not been a substantial change, it is a change which has excited a remarkable amount of comment.
The noble Lord, Lord Oakshott, referred to the Parliamentary Commissioner and said that he did not wish in any way to criticise him. I liked the phrase of the noble Lord, Lord Beswick, when he was telling us about the publicity that was given, as it were, to this issue. He said of the Treasury instructions, "They were of course, given to the Parliamentary Commissioner". Well, my Lords, I hope so indeed. What surprised me about it was that the Parliamentary Commissoner did not feel called upon to comment. The noble Lord, Lord Oakshott, said that it was outside his terms of reference; that the Parliamentary Commissioner deals only with administrative problems and not with policy. That may be so, but if we have a Parliamentary Commissioner for this sort of thing at all, surely he can deal with matters outside his terms of reference when he wishes to and when he thinks he should do so. Is this not how the whole doctrine of equity grew up, when, as it were, the common law did not fit the facts? I am not a lawyer and, like the noble Lord, Lord Oakshott, I do not want to criticise the Parliamentary Commissioner, but I want to ask the question as to why he did not comment. It seems to me that that is what he was there for. Does he agree with Her Majesty's Government that there was no change sufficient to warrant a public statement? If so, that is not the view I take.

1423
Then there were the words which were quoted by the noble Lord, Lord Oakshott, from the Report of the Parliamonetary Commissioner. He said, apropos of this Treasury instruction, "Which I have seen". My Lords, he does not even go on to say, "but which you have not seen". He only says that the correct procedure according to the instruction has been followed. This seems to me to be sticking too closely to his brief. Why has there been no comment at all on the confidentiality of the instruction? If it is what Her Majesty's Government say it is, there was no reason—and there may often be reasons—for its being confidential. Yet it can hardly be so slight that Her Majesty's Government say it is not for publication, if it can arouse debates of this kind. I cannot believe that this is just the Opposition frivolously baiting the Government on this issue.
That is what the noble Lord, Lord Beswick, said on March 9—or that is the implication—and still I am in the dark as to what the noble and learned Lord who sits on the Woolsack will say. He will no doubt tell us that the Crichel code gave no prescriptive right to have land which is bought for the public service offered back to you if it is no longer required. But nevertheless—and I shall be most interested to hear what the noble Lord, Lord Pilkington, has to say—the Crichel code gave so strong a recommendation as to put the Government under an obligation to treat as well as possible a citizen who had been compelled to give up something compulsorily for the public good. Next, we shall be told, I have no doubt, that the Crichel code required every case to be treated on its merits. Well, my Lords, has not the case and its merits been substantially changed, to the disadvantage of the original owner, by this confidential instruction? Again, what will the noble Lord, Lord Pilkington, say about this?
Lastly, we shall be told that it is always the duty of the Treasury to get the maximum price for the public good. Of course I agree with that, but I do not necessarily think that by agreeing I accept the proposition that the Treasury should get an unconscionable profit for the public. I think it is perfectly right for the State to make the best profit it can for the community, but I think it is equally
1424
wrong to screw the last ounce from land required for specific public service when it is no longer so required; and it is doubly wrong when there is in existence a code which recommends the offering back of such land. In any case, as the noble Lord, Lord Oakshott, has said, the community will "get its whack" in the form of development levy, capital gains tax and any other tax that may be imposed.
Lastly, there comes the question upon which the noble Lord, Lord Oakshott, touched (and I do not know what the noble Lord, Lord Pilkington, will say about this), the question of the land not having been offered back. It was not even offered back formally, because it could not be offered back formally unless it was offered back in the lot in which it was originally acquired. This is a difficult question for the Government to answer. It was bought as 37 acres or thereabouts and it was sold as 106 acres. I am not suggesting that the price should have been anything other than the market price. The buying price in 1940 of £41 an acre was a fair one; the selling price of £500 an acre (or nearly that) was also fair, or so I am advised. Nevertheless, in spite of that it should have been offered back as a lot, as the Crichel code suggested, to the original owner. That was not done. We may well be told that things of this nature will be avoided in future. I hope so, but that still does not prevent the injustice which has taken place and it still does not go far to-wards preventing this kind of thing happening again. In order to prevent this happening again, in the first place it seems to me that these instructions should be published. Of course one accepts the fact, as the noble Lord, Lord Winterbottom, told me when he first answered this question, that some instructions have to be confidential. I can quite understand that, but they do not have to be confidential—nor should they be—when they change substantially the existing practice, as in this case.
I wonder whether, in addition to publishing this instruction and other instructions like it, it would not be sensible to have a Bill to clarify the Crichel Down code. If Her Majesty's Government are right in thinking that it wants clarificattion that is all the more reason for clarifying it by Statute. Again, the

1425
Government may well think that it needs altering. We are not arguing about that. The alteration they have made may, in their own eyes, be a good one; it may be a good idea in the eyes of Parliament as a whole. In that case, let them alter it publicly in Parliament. That seems to me to reaffirm what the noble Lord, Lord Oakshott, said, that this is the only way to deal with this kind of thing. It is the only way to deal with it, not only from the point of view that a question of this sort should come before Parliament, but because I think it is the only way in which a Government Department—and I have no hesitation in saying that I think the Treasury have behaved with extraordinary lack of judgment, indeed error of taste, in this respect—can be prevented from acting in such a high-handed way again.
The Treasury attitude seems to be that Crichel Down and the war is a very long time ago. I hope I am not repeating myself when I say that they tried to play down the scandal of Crichel Down and make us forget that it was a cause célèbre in which the public felt that a great victory had been won against a rapacious Government Department. Their attitude is that the Crichel code is a concession, a privilege, and not part of the standard rights that we all have. There is also this fear, this guilt feeling and sub-conscious attempt to whittle away even those concessions, as the Treasury regard them, that already exist. I feel that there has been, to say the least of it, a gross error of judgment here, and I shall be very interested indeed to hear how the Government defend the Treasury on this issue.
3.32 p.m.
LORD CONESFORD: My Lords, the House in all quarters will be very much indebted to my noble friend Lord Oakshott for raising this matter again. It has twice recently been before the House, originally on the Question of my noble friend on February 25 of this year, and then again on the occasion of my Question a little over a fortnight ago on March 9. May I at once differ from the noble Lord whom I am following, with so much of whose speech I agree, in welcoming, while he seemed to regret, the fact that this debate will be answered by the noble and learned Lord on the Woolsack. It seems to me that this is most suitable, and I know he will, with
1426
his usual patience, listen to the serious arguments that will be addressed to him from all quarters.
LORD HENLEY: My Lords, I hope the noble Lord did not think I was regretting that this debate would be answered by the noble and learned Lord on the Woolsack. I was merely regretting that he was answering it so late that we were left in the dark as to what he was going to say.
LORD CONESFORD: My Lords, I appreciate that; I was not being too serious in my comment on the noble Lord, Lord Henley, I think there is a tendency in these discussions to confuse two perfectly simple questions which are entirely separate. The first is, should the land have been offered back to the previous owner or his successor in title? The second question is, if so, at what price? I do not think that second question causes any division whatsoever in this House. Everybody is agreed that the price must be the current market price as assessed by the district valuer. On that there is no question and no dispute. The sole question is, should the land have been offered back to the previous owner? According to the policy laid down by my noble friend, the then Minister of Agriculture, in the House of Commons on July 20, 1954, undoubtedly this land should have been offered back. If that policy had remained unchanged, if those principles had been observed, I think it is unarguable that the land must have been and would have been offered back. But it is alleged that there have been certain subsequent clarifications or modifications of that policy, at sometime in 1957 and 1958. I think I am fairly summarising them. For their nature I am relying on what was said on this subject in two Written Answers by the Financial Secretary to the Treasury in another place. In effect, what the modifications in 1957 and 1958 were doing was to add local authorities' requirements to the public purposes that would entitle the Government not to offer the land back to the previous owner.
My summary of the principles announced by the then Minister of Agriculture in 1954 must be incomplete, but the House will remember roughly their effect. The effect was that agricultural

1427
land that had been acquired by compulsion, or the threat of compulsion, and was no longer needed by the acquiring authority must be offered back to the previous owner, unless it was required for another public purpose or by another Government Department; and it was not unnatural if that was extended in subsequent years to such purposes as were involved, for example, in the New Towns legislation, and if public authorities as well as Government Departments and local authorities were added to the list of people whose need for the land could be a justification for not offering the land back to the previous owner. Let me say at once that I agree with my noble friend Lord Oakshott; I think that even that modification should have been disclosed to Parliament. Nevertheless, it was not a great change in principle. The principle of the code laid down by the then Minister of Agriculture in 1954 continued to be observed.
But when we get to 1966 we find something of a fundamentally different nature, which was not foreshadowed in any way by the then Minister of Agriculture in the 1954 Statement. And let me say, as one of the many in this debate who was present in the House of Commons on the afternoon when that policy was announced, that it was accepted by everybody, in every quarter of the House of Commons, as a statement of extreme importance. The new policy announced was not one that could be lightly set aside without Parliament being told. It was a policy to which all quarters of the House of Commons and the public attached the greatest possible importance.
What is this modification? It is this: that you no longer look at whether it is or is not agricultural land at the time when the acquiring authority no longer needs it and at the time when it ought to be offered back to the previous owner. It no longer matters whether it is some public authority that needs to acquire the land. According to the new doctrine, it need not be offered back—in fact it is not to be offered back—if anybody, who may have no connection with the land whatsoever, has been informed by the local planning authority that that authority would be likely to allow the land to
1428
be developed for a non-agricultural use. There is no certainty that the person who sought that permission either had, or ever would have, any connection with the land whatsoever.
There is no certainty that the use sanctioned would ever be put into effect. Nevertheless, the mere fact that some outsider has obtained permission, or has been told that permission is likely to be granted, to develop the land for a non-agricultural use would be sufficient to do away with all the rights of a previous owner—rights that we thought were secured in 1954—to have his land offered back to him when it was no longer required either for the original purpose of the acquiring authority or for any other public purpose. What has happened is not a modification of the 1954 policy; it is a complete abandonment of the 1954 policy. In such a case, the owner has no rights left at all. If a change of this magnitude was to be made, of course it ought to have been disclosed to Parliament.
But I wish to put to the House a further point. How extraordinarily ill-advised the Government are in even wanting to do this! I do not think that necessarily they would have got a penny less if they had done what we all thought to be their duty under the 1954 code. In so far as the new use of the land for which planning permission had been adumbrated was thought to be likely, it would have affected the price of the land. If the land had been offered back to the owner he would have had to pay an increased price, based on a valuation that took into consideration the possibility that the land would be developed in this way. May I say, in passing, that in welcoming the fact that the noble and learned Lord on the Wool-sack is to answer this debate, I am not saying a word against the way in which this matter was treated by the noble Lord, Lord Beswick, when he was giving us his answers on the earlier occasion.
To resume what I was saying, why is it supposed that the Government would necessarily have got less when they sold the land? It would have had to be valued on current market value, and by an independent person. I do not think the noble and learned Lord would dispute that that market value would have reflected the effect of the planning permission of which

1429
we are speaking. The great difference, of course, to the previous owner is that if the land had been offered back to him it would have been the land that he or his predecessor in title had owned that was being offered back to him—an amount of land, even at an enhanced price, that he might conceivably afford to buy.
But the acquiring authority, freed from the obligation to offer the land back to its former owner, thought fit to combine it with a much larger piece of land, which put it, when offered at auction, wildly beyond the means of the previous owner. I do not know the previous owner. I know nothing about this matter beyond what has appeared in Parliamentary Answers in both Houses. But it seems to me that the previous owner has suffered a great injustice in this way; that he had every reason to think that since 1954 the owner of agricultural land compulsorily acquired in this way would have a right to acquire it back at a fair value. He has been deprived of that right.
The noble Lord, Lord Beswick, disclosed that when the land was compulsorily acquired from the owner it was so acquired for more than the ordinary agricultural value precisely because it was known that the soil contained sand—in fact, I believe that the land is known as Sands Farm. Just as the owner was given something greater than an agricultural price when the land was taken from him, so he would have had to pay something very much more than the normal agricultural price had it been offered back to him. Nevertheless, I can see no reason whatsoever for not offering it back to him. It seems to me that the Government have acted in a way that has shocked a number of people, and a number of political Parties, yet in such a way that the Government get no satisfaction whatsoever. I cannot see that, having done this injustice to the individual, they have obtained any extra money at all to compensate them for their misdeeds.
3.45 p.m.
LORD PILKINGTON: My Lords, my only reason for intervening in this debate is that I am the only survivor of what has been referred to as the Committee of Three. In fact, it was a Committee of two and two halves, because although the Committee sat for only 12 days we began with Sir Thomas Barnes, who withdrew,
1430
and ended with Sir Maurice Holmes, who took his place. The Committee reported on whether those civil servants still in the Service who had been strongly criticised by Sir Andrew Clark should be transferred to other duties following his most pungent Report.
It seems to me that there are just three or four points that may usefully be recalled in the present circumstances. The first to which I want to draw attention is the reason for the Committee of Three at all, because it is not usual, I think, following such a searching and critical Report as that which Sir Andrew Clark made on the conduct of affairs in the Crichel Down case, for a further Committee to be set up. There was so much high feeling about the possibilities of injustice to the individual, and also, within the Civil Service, the feeling of injustice to other individuals, that this Committee was set up to consider whether, in order to maintain public confidence in the administration of Public Departments, any of the officers concerned should be transferred to other duties. It was the opinion at that time that confidence in the administration of Public Departments, upon which law and order in this country so much depends, was seriously at risk. Whether it was so or not I cannot judge; but that was why we were set up.
Secondly, the feeling in Parliament was so intense (and in the Civil Service in a different direction), that when one or two of us were approached to serve on the Committee we were told that Parliament would not lightly take the setting up of a fresh Committee of this kind, but that it probably would accept, as indeed it did, the Report of a Committee when it was told simultaneously that that Committee had been set up and had reported. That is what happened. Thirdly, we received written evidence, and we saw each of the five civil servants who were still remaining at that time in the Service. We did not, of course, re-try the matter; we were not at all a court of appeal. We kept firmly to our terms of reference. But I can say, unhesitatingly, that at the end we had no difficulty in understanding the concern and tension that was felt within the Civil Service.
I think that had not the Minister of Agriculture at that time stood firm against demands for severe disciplinary

1431
action against individuals, injustice to those individuals would have been done even if justice to the private individual outside had been completely restored. On that point I want to quote from paragraph 9 of our Report. It was an exceptionally short Report—it consisted of only nine paragraphs, five of which dealt with 58 individuals and their actions. Paragraph 9 said:
"Sir Andrew Clark's Report is critical of the administrative handling of the disposal of Crichel Down in a number of respects—for example, the assessment of the financial implications, …"—
and others.
"His criticisms are in the main expressed in terms of the actions of individual officers. Having had the opportunity of considering not only the report but also the observations of the men concerned … we think it material to record our strong impression that some part of the deficiencies disclosed in the handling of this case may have been due as much to the organisational relationship between"
the different Ministries
"as to the faults of individuals."
In fact we were assured that that was the case.
This again brings one back to the question of public confidence, and I therefore quote now from the other important paragraph that seems to me to be always material, and that is paragraph 3.
"There is no defined set of rules by which the confidence of the public in the administration of Government Departments can be secured and held. Incorruptibility and efficiency are two obvious requirements. In the present case corruption has not been in question; inefficiency has. Beyond that it is difficult to particularise. But the present case seems to us to emphasise one further factor which may be less self-evident but which we regard as of the highest importance. In present times the interests of the private citizen are affected to a great extent by the actions of the civil servants. It is the more necessary that the civil servant should bear constantly in mind that the citizen has the right to expect, not only that his affairs will be dealt with effectively and expeditiously, but also that his personal feelings, no less than his rights as an individual, will be sympathetically and fairly considered."
In the case of Crichel Down we thought that the admitted shortcomings in this respect were the main cause of such loss of public confidence as resulted from that case.
How far this is really the issue in the present case I do not think I can judge,
1432
but it seems to me that as life has become more complicated and as the public sector has impinged even more on the lives of the individual private citizen the need for sensitivity to the feelings of individuals has certainly become no less, and perhaps, if anything, even more. I conclude, therefore, by saying that, in my view, any change in conditions in such a very sensitive area as this had already shown itself to be was bound to cause trouble sooner or later, and still more so if the change was made administratively and without Parliament's being told at the time.
3.55 p.m.
LORD ILFORD: My Lords, I shall not detain your Lordships long because it seems to me that this afternoon the House has to determine a constitutional question—and I hope I am not putting it too high—of some serious importance, and of much greater importance even than any injustice which may have been done to Mr. Henly in the dealings with his land. I do not suppose that many of your Lordships will disagree with the proposition that when a Minister makes a statement to Parliament on a matter of policy indicating the course which he proposes to take in certain circumstances, if he subsequently desires to modify that procedure and to amend his statement he ought to come back to Parliament and make a further statement which Parliament can, if it so desires, accept. In this case that has not been done. I do not think any of your Lordships would dispute the fact that the statement that was made at the time of Crichel Down and at the end of the inquiry was a major constitutional statement. It was intended to be acted upon by the Government, and to everybody's knowledge and belief was so acted upon for a certain length of time.
The difficulty about that statement (and I have read the statement carefully) seems to me that it failed to provide any real indication of what was meant by "agriculture". In the final statement, in which the procedure that the Department intended to follow was outlined, there is no mention of agriculture at all, except that the land must, of course, have been agricultural land before it was requisitioned. The statement does, however, indicate in an earlier passage that the land at the time of the proposed

1433
release must be in a condition in which it could not be used for agriculture in the way in which it would have been used for agriculture before it was requisitioned. Therefore, in applying the Crichel Down procedure to these cases the Government had to ask themselves whether the land was in a condition in which it could be used for agriculture, as it was at the time when it was acquired.
The first difficulty that arose was the suggestion that there was sand in the land. Then it turned out that the sand had been there at the time of requisition, and accordingly that point fell rather ignominiously to the ground. Then a much more serious departure was made. It was decided that if planning permission had been given for some purpose other than agriculture, the land need not be surrendered to the former owner. Then the decision goes a step further; if there is an indication from the planning authority that they would not object to a planning order, then that takes the land out of the sphere of Crichel Down altogether. Those two decisions were major departures from the original proposals. As my noble friend Lord Conesford has pointed out, they would enable a person who had no interest whatever in the land to make an application for planning consent, and if the planning authority indicated they had no objection to his application = the land was taken out of the category where the owner could claim an offer=back.
That was not the end of the modifications that were made. It was decided that if a non-departmental Ministry, or the local authority, required the land for their own purposes, quite irrespective of the purposes for which it was acquired by the original Ministry, that also would take the land out of the class of land which should be offered back to the owner. That seems to me to be an even more serious departure from the original Crichel Down statement than the earlier ones about planning. It virtually meant that any authority, provided that it was non-departmental, which had a use for this land and had compulsory powers could acquire it, whether or not the owner wanted it back. That was not quite the end. It was also decided that if land fell within the area of a new town or, I think, an expanding town, that would
1434
take it out of the class of land which should be offered back.
So it will be seen that the field has been very considerably narrowed. I suggest to your Lordships that in each one of those cases, before a decision was taken, the Department ought to have come back again to Parliament and sought its approval for the changes which it proposed to make. I hope that this afternoon your Lordships will express very strongly your view that the course I have indicated is the right course for the Minister to pursue. I hope, too, that our debate this after-noon may lead to legislation. This seems to me to be a case which clearly ought not to be determined, as it has been deter-mined, by Government Departments. I acquit the Treasury of any suspicious designs, as my noble friend Lord Henley seemed to suspect, but it is a procedure which ought not to be followed. A matter of this sort ought to be put upon the Statute Book and ought to remain there under the control of Parliament. I hope that your Lordships will come to that conclusion this afternoon.
THE EARL OF KINNOULL: My Lords, I should like to add my thanks to my noble friend Lord Oakshott for introducing this Motion, and for his persistency in pursuing this very important subject. There are only two aspects of the issue on which I should like briefly to comment. First, I should like to ask a rhetorical question: what have the Government gained by changing the rules in the Treasury circular, beyond a deepening suspicion of eroding one of the fundamental principles of the Crichel Down policy? Secondly, why has their change of rule been framed with such extraordinary and masterly ambiguity, which has led to some confusion as to what cases actually qualify under this rule?
Returning to the first point, in my humble opinion the answer to my question is that the Government have gained exactly nothing. I cannot see why, as my noble friend Lord Conesford has already said, a district valuer could not frank a valuation of land taking into account development value and potential development value, in order for the Lands Division of the Ministry of Defence first to offer it back to the former owner before putting it on the open market. I

1435
do not accept, as others have accepted, that any former owner should be allowed to re-purchase at agricultural value when a development value is involved; nor, in my opinion, did the Crichel Down policy ever say so. So I shall be interested to learn from the noble and learned Lord, when he comes to reply, exactly why the Government saw fit to change the rule.
The second point which I should like to make is with regard to the Treasury circular. It concerns a reply which the noble Lord, Lord Beswick, gave on March 9 to my noble friend Lord Conesford. He said:
"… it was decided, in February, 1966, that land surplus to the requirements of Government Departments should not be regarded as agricultural in character if the local planning authority had given, or indicated that it would be prepared to give, planning permission for the land to be developed for non-agricultural use."—[OFFICIAL REPORT, 9/3/70; col. 595.]
It would therefore qualify under this new rule and would not be re-offered first to the former owners.
I am a little confused by this Answer, because I have copies of the two Treasury circulars which refer specifically to the disposal of agricultural land. The first is dated February 14, 1966, and it concerns land which is being offered to various Government Departments. But it does not, in fact, deal at all with land with development value. The second circular is dated January 18, 1967, and that specifically concerns itself with land with development value. If I am correct in my interpretation, then it appears that the noble Lord, Lord Beswick, was not quite accurate, as it seems that the Treasury circular concerned was dated January 18, 1967, rather than February, 1966.
One might ask: What does this matter? Is this pertinent? I suggest that it is pertinent to the Compton Bassett case, because it was in early 1966 that the Minister of Defence, in a letter to the former owners solicitor, refused to give the right of first refusal even at full market price to the former owner. I think this is a fundamental issue and I hope that the noble and learned Lord will be able to deal with it later.
The second aspect of my noble friend's Motion to which I should like to draw the attention of the noble and learned
1436
Lord, concerns the ambiguity of wording as regards what category of case is included under this new rule. The Government's reply on January 19 said:
"Land is regarded as outside the scope of these arrangements … if it is the subject of planning permission for development … or if the disposing Department has been informed by the planning authority that such permission would be likely to be granted".—[OFFICIAL REPORT, Commons, 19/1/70, cols. 62–3.]
Again, it was said in another place on March 3:
"In 1966, the potential of the land for early development was introduced as an additional test of 'agricultural character'".—[OFFICIAL REPORT, Commons, 3/3/70, col. 79.]
This new rule thus covers not only land with actual planning consent, but land with potential development value, and I suggest that this widens the category to any length one cares to choose. What is land with potential development? Is it land likely to come in for development within five years, within ten years, with-in fifteen years, within twenty years, or what? Again, I hope that the noble and learned Lord will be able to clarify this very loose form of words.
Finally, I should like to turn to the Compton Bassett case, which shows the very dangerous effects of the Government's new rule. One is obliged to ask what were the merits of the case for the Ministry of Defence to feel that they had no moral duty to offer the 37 acres back to the Henly family. The facts of the case have already been mentioned. The land was purchased under the threat of compulsion and in the days when the national interest was paramount. The purchase price was £41 an acre which, I submit, after a certain amount of re-search, did not reflect any sand-bearing land development value at that time, despite the comment of the noble Lord, Lord Winterbottom, on February 25.
We know that the Henly family approached the Minister of Defence in 1966, immediately they learned that the Minister intended to dispose of this land, and we know that their request was refused. We also know that the land was put to auction and was coupled in one lot with a further 70 acres, in what the noble Lord, Lord Beswick, described as the national interest. We know that that lot fetched at auction £50,000, and we also know that on a pro rata basis the 37 acres of land would have fetched

1437
£18,000, which may well have been of more interest to the former owners. The Henly family have, I suggest, good cause to feel aggrieved.
My Lords, there is one further point that I should like to mention; that is, that I understand sand working in this area has always been rigidly controlled by the planning authorities, and that one of the conditions laid down, not surprisingly, is the restoration of the land to agricultural use within a certain period of time. This, I understand, has worked successfully in the past, and it is difficult to see why it could not work successfully in the future. It was therefore with some surprise that I read the reply of the noble Lord, Lord Winterbottom, on February 25, 1970, when he said:
"… there is no legislation to ensure automatically that the land is restored to its original condition after the extraction of sand … "—[OFFICIAL REPORT, col. 49.]
I am not a lawyer, but I have always been led to believe that conditions attached to a planning consent do have legal effect, and if I am correct in this it is, I suggest, another example of the Government's misunderstanding and muddle over their new, ambiguous rule.
My Lords, the Compton Bassett case has, I believe, shown up a most serious weakness in the Government's change of rule; and I hope that when the noble and learned Lord comes to reply he will be able to tell us to how many other cases since 1966 this rule has applied, and also how much deemed surplus land which the Ministry of Defence now own they intend to dispose of in the near future. The merits of the Compton Bassett case and the way in which the Ministry of Defence have handled it has, I believe, won the Government only a feeling of suspicion. This suspicion, I am sure, could be removed tonight by the noble and learned Lord the Lord Chancellor if he could give us an assurance that this new rule will be either scrapped or considerably tightened up—and, knowing his anxiety for justice, I hope that it will be the former.
4.13 p.m.
LORD BROOKE OF CUMNOR: My Lords, I was sitting as a Back-Bench Member in another place when my noble friend Lord Crathorne, then Sir Thomas Dugdale, made his well-known Statement in 1954 on the Crichel Down affair. I
1438
vividly remember the solemnity of atmosphere that there was in the House that day, and I am aware of the same solemnity of atmosphere in your Lordships' House this afternoon, because I believe it is recognised in all parts of the House that matters of grave import are being debated. What will flow from this debate is another matter. At this stage, my concern, and I think that of my noble friend Lord Oakshott, is to ascertain the full facts, because I suspect that every noble Lord listening to this debate and endeavouring to sort out the issues in his own mind will feel that there are still some facts to be brought into the open.
An essential difference between to-day's debate and that of 1954 is that in 1954 it was primarily civil servants who were under criticism, although at the end of his Statement my noble friend, with memorable public spirit, resigned his post. To-day I have not detected any criticism of civil servants, except possibly in the speech of Lord Henley; and, like my noble friend Lord Ilford, I am prepared to spring to the defence of civil servants in this matter. I have some experience myself, though it is many years old now, but I think it enables me to counter some of the charges which the noble Lord, Lord Henley, implied, though with every other word of his speech I profoundly agree. Let me explain. The resignation of Sir Thomas Dugdale in 1954 led to a number of Government changes, in the course of which I found myself for the first time a member of the Government. I became Financial Secretary to the Treasury, and though I had no part or lot in the drafting of the Crichel Down Statement, because I was at that time a Back-Bencher, it immediately fell to me, as a Treasury Minister, to play a part in administering the new policy.
I am bound to say that at that time there was no "guilt complex" in the Treasury. There was no feeling that the Crichel Down Statement had been something of a concession to the private owner, which should be diminished so far as that could be done by administrative action. On the contrary, everybody in the Treasury at that time, and I am sure for many years afterwards, if not up till now, took the whole affair of Crichel Down as a most grave and, indeed, tragic event in the history of Government

1439
administration; and certainly in all my experience immense care was taken to ensure that the Crichel Down Statement was most conscientiously adhered to in all actions by the Government. I cannot think, therefore, that we should gain by implying that there has been any back-sliding now on the part of civil servants.
There have been changes in the policy, and I want to ask whether the changes which were made in 1957 and 1958 were sufficiently fully explained in the Written Answer that was given by the present Financial Secretary to the Treasury in another place on March 3, 1970. I understand that part of the Government's case is that if the 1966 change in policy was not announced, well, that was justified by the failure to announce the 1957 and 1958 changes. I, for my part, do not know why those changes were not announced. I was not a Treasury Minister at that time; otherwise, I should have known. But the Answer by the Financial Secretary to the Treasury on March 3 of this year said:
"… in 1957 and 1958 it was decided to take into account any interest which non-departmental public authorities or local auhorities might have in acquiring such land".—[OFFICIAL REPORT, Commons, col. 79.]
I cannot believe that that is a precise statement. That would suggest that any interest which a public authority or a local authority might show could be taken into account. Now that is certainly contrary to the policy laid down in 1954 as regards Government Departments, because in Sir Thomas Dugdale's Statement it was said explicitly:
"… transfers of such land from one Government Department to another will not be made in future unless at the time of transfer the receiving Department could and would have bought the land compulsorily "—
compulsorily, my Lords—
"if it had been in private ownership".—[OFFICIAL REPORT, Commons, 20/7/54, col. 1190.]
My recollection of the 1957 and 1958 changes is that they were made because it was recognised that it was not only Government Departments which had compulsory powers: local authorities had compulsory powers, and in certain circumstances nationalised industries had compulsory powers. Therefore it naturally appeared to the Government of that day that there would be no advantage to the former owner of the land if the land was
1440
resold to him, when it was known that, let us say, the local authority would have immediate cause to make a compulsory purchase order on the land.
The object of the Crichel Down policy in safeguarding the rights of the original owner was that he should regain his enjoyment of the land. The reason why other Government Departments which could and would have bought the land compulsorily were given a special position in the 1954 Statement, as against the original owner, is the obvious one. How could he have gained if the land had been handed back and then another Government Department had proceeded to exercise its compulsory purchasing powers against him? That is why, to the best of my recollection, the 1957 and 1958 changes simply involved the application of the same principle—that is to say, the possibility of compulsory purchase— to the land in question. The 1954 Statement did not mention (and it should have mentioned) the local authorities and the public authorities that had compulsory powers; as it was, it mentioned only Government Departments having compulsory purchasing powers. If I am right in that, it proves that the 1957 and 1958 changes did not in any way impair or damage the position of the original owner. He could not have retained the land in any circumstances, because there was this likelihood of a compulsory purchase order being made against him if the land passed back to him. On the other hand, the 1966 change quite definitely impaired his rights.
My Lords, before I come to the issues of principle I should like to spend a little time on the Compton Bassett case. We are discussing the whole matter to-day in the light of questions and answers in this House during the last month or so and in the light of Written Answers given in another place. On February 25, 1970, in answering a supplementary question, the noble Lord, Lord Winterbottom, said (col. 50 of the OFFICIAL REPORT):
"This land will not be used for Agriculture …"
That seems to me a doubtful or tendentious statement. If he means that, the land having been bought by somebody—not the original owner—who intends to develop the sand, it will not be used for agriculture, there is no doubt that that is true. But what we should be

1441
talking about is the situation before the sale of the land. I have no ground for knowing that, had Mr. Henly been allowed to re-purchase the land, he would not have continued to pasture his cows upon it—as I understand is so at the present time. It may be that this is one of the matters upon which we need further information. So much went wrong in the Crichel Down case (and I have recently been re-reading the Report on that) through those who were trying to apply a policy failing to consult people. If 1 may quote a typical sentence from the Report on Crichel Down:
"When cross-examined as to this, he admitted that it was pure guesswork on his part and not based on any information he had received or any enquiries he had made."
One of the questions that I want to ask is: how much communication was there with Mr. Henly before it was decided not to offer the 36 acres back to him, but to put the whole 100 acres or more up to auction? Undoubtedly, had he been given the opportunity to buy his 36 acres, he would have had to buy it at full market value. But I am not sure what ground the Government have for saying that had he bought it back he would not have continued to use it for agriculture. Certainly I can imagine a case where I might wish to protect the amenities and therefore, though I had to buy the land at development value, nevertheless I would decide not to develop it. After all, the sand was going to be there for ever until somebody took it out. He would not have been injuring himself or his property or the national interest if he had delayed development of the sand. That is the first question I want to ask about the Compton Bassett case: how much communication was there with Mr. Henly? I say in passing that there was far too little communication with the original owners of the land at Crichel Down. That was one of the major causes of the trouble.
My Lords, my second question on Compton Bassett is to ask specifically why the Ministry of Defence insisted on selling the whole 100 acres or more, and did not put up for sale as a separate lot the 36¾ acres that had previously been owned by Mr. Henly's father. If the answer to that question is that it was thought that a materially higher price would be obtained at auction by selling 100 acres rather than by selling 36 acres,
1442
I am bound to remind your Lordships that one point which came most significantly out of the whole Crichel Down case was that an intention to screw the last farthing out of land must not be allowed to weigh against the rights of the original owner. The original owner was, under the Crichel Down policy, to be offered his land back at the fair market value as determined by the district valuer. There was to be no question of putting it up to auction and only giving him the chance of bidding against everybody else, even though the Government might have got a larger price by those means. Indeed, the Government really cannot argue that a fair market value fixed by the district valuer would not be a satisfactory price to obtain for land, when, after all, it is Government policy on purchasing land compulsorily that a fair market price fixed by the district valuer is the proper price at which to buy. It must be a proper price at which to buy and at which to sell in those circumstances.
But, my Lords, in all this discussion we have had no clarification of the question: why did not the Government take what would have seemed to be the obvious opportunity of offering the 36¾ acres at auction as a separate lot, even if it had not offered it back to the original owner in advance of the auction? By the decision to sell it as part of a single lot of more than 100 acres, the Government must have known that this was putting it beyond the reach of Mr. Henly. If he had been offered the 36¾ acres, being his father's original holding of land, there was no reason to presume that it would have been beyond his reach, and this debate might have been unnecessary.
I now come back to the questions of principle. We have been told that in 1966 a change was made from the original Crichel Down policy statement, and that it was a change designed to exclude from the land covered by the Crichel Down pledge land on which planning permission for development had been given or could reasonably be expected to be given. I do not think that anybody at any point so far has asked what advantage to the national interest the Government thought would accrue from making that change. I can hardly imagine, from my experience of post-Crichel Down administration, that

1443
the Government would have changed the policy unless in their own eyes there was a powerful reason for that. But no reason whatever has so far been vouchsafed to us, and this is another matter on which I am sure that my noble friend Lord Oakshott, and your Lordships' House, would like specific information.
The only hint we have was in an answer given by the noble Lord, Lord Beswick, on March 9 when he said:
"… if land can be put to the best use from a national point of view, then that fact should be taken into account when a particular case comes up for decision."—[OFFICIAL REPORT 9/3/70; cols. 595-6.]
My Lords, that seems to me wholly unsound. If your Lordships will look back, you will find that the essence of the Crichel Down trouble arose because certain people conceived an idea that from the national point of view the Crichel Down estate as a whole ought to be re-equipped and let as a single unit. That was because in pre-Crichel Down days the view prevailed that the rights of the previous owners were as nothing compared to what was deemed to be the best use of the land from a national point of view. The idea that the best use of the land from a national point of view should prevail against the desire of the original owner to have the land back and then to decide for himself what use he should make of it is completely contrary to the policy which was laid down by Sir Thomas Dugdale in his 1954 Statement.
I am bound to say that once again there seems to me to have been (as there undoubtedly was between 1950 and 1954 in the Crichel Down case) a failure to appreciate the moral right of a former owner to have consideration given to his desire to have the land back and then to use it as he wished. I know that there were those in 1954 who argued that he should be entitled to have it back at under market value. I never shared that view; neither did the Government of that day, nor any Government at any time since. But I trust that the noble and learned Lord the Lord Chancellor will deal faithfully with this renewed suggestion that if land can be put to a better use by somebody or other from a national point of view that should weigh against the right of the original owner, or his heirs, to be enabled to re-purchase the land.
1444
In any case, my Lords, what happened in 1966 was a material impairment of the rights of the previous owner which have been safeguarded by the Crichel Down Statement of 1954. I have indicated how the 1957 change and the 1958 change—if I am right in my recollection of them— did not, in effect, impair the rights of a previous owner at all. But the 1966 change did. As has been said by a number of my noble friends, the 1966 change seems to mean that the Government Department which acquired the land under compulsory powers, or threat of them, is now entitled to hawk the land round to any possible would-be developer; and if it can find a would-be developer willing to apply for planning permission for development, that will absolve the Government Department concerned from the necessity of complying with the Crichel Down procedure.
If that is the case, it is a most serious wrong done to the original owner. I know that in the Compton Bassett case it was not a question of hawking land round to would-be developers. What happened was that the Ministry of Defence approached the Wiltshire County Council, which indicated that if an application to develop this land was made it would probably be granted. But the explanation that has been given of the 1966 change certainly would seem to allow a Government Department to behave in the way I have indicated. If I were the original owner of some land, I cannot imagine anything more aggravating than to discover that the Government Department which had compulsorily acquired it from me against my will was now going round the country seeing whether it could find some developer to put in a planning application to develop my former land which was not in his possession at all.
My Lords, I come back to my main question. What advantage did the Government think to gain by this? Did they think to gain an addition to the price? Surely that would in any case be looked after by the district valuer. It is perfectly open to the district valuer to take into account any planning permission which has been given, or any planning permission that is likely to be obtained. It is then up to the former owner to decide whether or not he is prepared to pay the current market value. If he is not, I for one would certainly say that

1445
a Government Department was then—but not till then—free to sell to any other quarter that it wished.
Somehow or other, it seems to me, for reasons which are not apparent, the Government in 1966 made a change in the Crichel Down procedure which was much more far-reaching than Ministers at the time appreciated; and, somehow or other, there was a slip-up and Parliament was never informed. It seems to me incredible that Parliament was not informed considering that the interests of the former owner were so adversely to be affected, as I think they were, bearing in mind that "Crichel Down" is a sensitive phrase, a sensitive and emotive phrase, whatever Government are in power and whatever Party in opposition. From the 1954 debates on this matter I would have judged that not for another 16 years but for another 60 years any Government in power would have been scrupulous in informing Parliament of any change in their policy that was materially going to impair the rights of a former owner.
My Lords, I have sought to speak in a critical, but not an emotional or hostile, spirit. I know the difficulties of these matters, but I suggest that there is still a great deal that has not come to light, a great deal that still has to be cleared up. If the noble and learned Lord on the Woolsack, who is doing the House the courtesy of replying to this Motion, will answer these questions, it will then be possible to examine further whether there should be legislation on this subject; whether the 1966 change should be endorsed, or abolished; and every other question arising out of the matter. But the speeches that have been made have, with a singular unanimity, shown that there is considerable public anxiety about the background of what happened at Compton Bassett.
4.39 p.m.
THE LORD CHANCELLOR: My Lords, the Government and, I venture to think, the whole House is indebted to the noble Lord, Lord Oakshott, for putting down this Motion for this afternoon. The questions to which it gives rise are obviously of considerable importance to any landowners whose land has been, or may in the future be. acquired either compulsorily or under
1446
threat of compulsion. We all have an unhappy recollection of Crichel Down. It was, unhappily, a case in which some of our civil servants did not display the high standards to which in this country we are accustomed. Several Government Departments and institutions were involved. Some do not seem to have known what others were doing, and denigratory letters were written about the previous landowner which simply could not be justified. We are all, I am sure, grateful to the noble Lord, Lord Pilkington, for coming here this afternoon and reminding us of the extent to which we are indebted to his Committee, who subsequently had to consider the painful task of what disciplinary proceedings should accordingly be taken.
The noble Lord, Lord Brooke of Cumnor, has reminded us of the debates which took place in 1954. They are very material, and in particular one debate which took place in your Lordships' House, because I venture to think that it really was what was said in that debate which subsequently led to what has been called the Crichel Down policy being announced in another place. It may be right to remind your Lordships at once, because it might seem odd that there should be a debate in your Lord-ships' House on Crichel Down, that the Crichel Down Inquiry was simply and solely an inquiry to find out what had happened, because there was a good deal of dispute about it and all questions of Government policy were specifically excluded from the inquiry, and in particular any question of preferential treatment in respect of an application on the ground of previous ownership or occupation of the land.
That was why it was in no way improper that, while the inquiry was being held, the noble Lord, Lord Balfour of Inchrye, on February 17, 1954, column 967, moved in this House that:
"In the opinion of this House, there is need for alteration of (1) the existing procedure and practice for release by the Government of lands acquired for Defence purposes; and (2) the procedure for compulsory acquisition of new lands by Government Departments and local authorities."
My noble friend Lord Silkin then moved an Amendment to the Motion, to substitute for the word "alteration" the word "consideration", so that this was a Motion proposing that the Government

1447
should give further consideration to these two things, compulsory purchase and subsequent re-sale. Perhaps the first point I ought to make is that these two things are entirely different. In the field of compulsory purchase, everything is provided for by law. Acts of Parliament lay down what is to happen. Normally notice has to be given. Then there is a certain time within which objectors can make objection. Ordinarily, there is a public inquiry, usually before an inspector of the Ministry, and then the Minister decides. All that is covered by legislation. People have legal rights. In these days it is all very much the concern of the Council on Tribunals.
The second branch of the Motion dealing with re-sale is one in which there is no law. It is all administration. There is no sort of inquiry, ministerial or otherwise, and it has nothing whatever to do with the Council on Tribunals. I heard what the noble Lord, Lord Brooke of Cumnor, said at Question Time, when my noble friend Lady Burton of Coventry, whose absence to-day we all regret, asked whether the Council on Tribunals might have a copy of the present administrative arrangements, and my noble friend Lord Winterbottom said that he would ask his right honourable friend. For that he was rather reproved by the noble Lord, Lord Brooke of Cumnor. But if the noble Lord will look at the Tribunals and Inquiries Act, which makes clear what is and what is not a matter for the Council on Tribunals, he will find that the Council are very much concerned with every aspect of compulsory purchase but not in matters of pure administration. Nowadays this may well be within the province of the Parliamentary Commissioner.
When I say that re-sale has nothing to do with the law, of course there is the law which applies to everyone—which is, if you own something you can sell it or not sell it as you like at what price you like to anyone you like. That is the law so far as re-sale is concerned. In the 1954 debate, the noble Lord, Lord Balfour of Inchrye, said this on re-sale:
"The principle which I suggest should govern such a situation is this: that once the purpose of acquisition of the land has been fulfilled, and the land is no longer required, the previous owner should be enabled to re-purchase it at a fair price. If the previous
1448
owner is unable or unwilling to do this, then the land should be disposed of openly, at the best economic price. Let me say at once that I recognise that this right of pre-emption by the previous owner, of which I am in favour, would have to be waived in certain exceptional cases. I concede that at once. For example, in the case of an air-strip where there are six, ten or fifteen different owners, obviously it would be impractical to sell that air-strip back to those previous owners. Then there is the case where land has since been requisitioned and taken for a housing estate, or planned for a housing estate. In such a case the land could not be handed back. There is the case of Peacehaven in Sussex, where some 350 plots destined for housing were requisitioned. They were largely derelict during the war, and after the war the previous owners could not be traced. It would be impossible to expect the Government to break up that land and sell it back to 350 owners. In general, however, I submit to your Lordships that this principle of the previous owner's right of pre-emption should govern.
I believe it would be impracticable, and probably unnecessary, to try to define this right of pre-emption in legislation. It would be Ear better, I believe, to recognise it by Ministerial directive in administration. It would be within the power of the Cabinet to direct the Minister concerned to give this right of pre-emption wherever practicable and possible, leaving the Minister to judge when a case must be dealt with as exceptional. Some such Ministerial directive as that would meet this question of the exceptional case, and would also avoid the need for legislation. The price at which land would be sold back would, I presume, be a matter for negotiation, or it could be settled by the district valuer. I would ask your Lordships to examine this question of principle which governs the Government action at the present time to see how it works. At present, the Government, having compulsorily acquired land for national purposes, are legally entitled to dispose of that land without any prior consultation with the previous owner. The Government are not obligated to offer the land for public sale, nor are they obligated to take the highest, or any, tender received in private. I would label such a position as tyrannical on the previous owner, and I believe it is a mockery of proper commercial practice in the general interests of the taxpayers that land should be capable of being sold in secret—not necessarily to the highest bidder but to anyone selected by the Government Department first."—[OFFICIAL REPORT. 17/2/54, cols. 970–1.]
After an interesting debate, the noble and learned Viscount the Lord Chancellor, Lord Kilmuir, replied, and I cannot resist reporting his opening observations. He said:
I hope your Lordships will not think I am making a serious breach of the traditions of this House by furnishing myself with a small table upon which I can put some of the many papers with which I have been supplied for the purpose of replying to this debate. To me, as to my predecessor, it has proved a singularly uncomfortable way of replying to hold

1449
two or three papers in each hand only to find that the vital one has dropped upon the floor,—[col. 999.]
I, too, have met with that difficulty, but, having tried a trolley, I have found this difficult. If I am interrupted and then have to make a swift and dignified retreat to the Woolsack there is a considerable obstacle to negotiate.
The noble and learned Viscount re-minded the House that originally under the Land Clauses Act 1845 the owner from whom land was compulsorily acquired had a right, if it was sold, to buy it back. That was the Act under which most of the land was taken for the building of our railways. But he also pointed out that on every subsequent occasion when Parliament had been asked about this, it had said, "No". I stress this only because some noble Lords this afternoon have spoken as though it were a self-evident proposition that it ought to be the law that if land is compulsorily acquired, whenever it is released, the previous owner should have a right of pre-emption. But the noble and learned Viscount, Lord Kilmuir, reminded us that this was not so. In all modern Acts, Parliament had declined to do that, because it did not think it was right.
As he pointed out:
"These provisions were excluded by the Lands Settlement Act, 1919. by the Local Government Act, 1933, by the Housing Act, 1936. by the Civil Defence Act, 1945, by the Prison Act, 1952, and by all Acts which in-corporate the Acquisition of Land (Authorisation Procedure) Act, 1946, which is now of almost universal application.
"So that, to put this into the right perspective, your Lordships must see that continuously Parliament has decided against conceding a statutory right of pre-emption to previous owners. Now what is the State to do? Is it to recreate, I will not say a statutory right, but something very like it—some kind of right based upon a moral obligation in the Government of the day or the Department concerned? Is it to recreate that right of pre-emption? I must say that gives one cause for thought. For the reason why the right of pre-emption has been so deliberately excluded is just the difficulty of stating the general principle of such a right with the necessary qualifications. So, although it is quite easy to say that the former owner ought to have the right of pre-emption, when you come to work it out you find that there are so many qualifications and limitations to be put upon it that it will, I think, defeat any draftsman.
"Let me give your Lordships two or three quite simple examples. Land is taken from A, from B and from C, and it is converted into
1450
a single unit. Is it to be divided up again. and that which was taken from A offered back to him, that which was taken from B offered back to him, and that which was taken from C offered back to him, and so on? And it may not be three; it may be any number. I think there would be great difficulty in doing anything of that kind.
"Consider another aspect. Land has been taken from A. Time passes and he sells the land. Is the purchaser from him to have the right of pre-emption? Suppose he has sold it not to one person but to two or three: are they respectively to have rights of pre-emption? Or, he does not sell, but he dies: are his successors in title—those upon whom the land has devolved under his will or under his intestacy—to have the right? If so, and there are more than one of them, which of them? So it goes on. It becomes, as I know, for I have had experience in these matters, amazingly difficult to state the principle with the necessary qualifications.
"Let me observe this, first. If you cannot formulate, either in a statutory code or in an administrative code, exactly what the principle is and subject to what limitations and restrictions it shall be applied, at once the administration becomes capricious and arbitrary, and that is, above all things, what you want to avoid. So, although, as I say, I am sympathetic to the proposal that the man who has lost his land should have the first opportunity of getting it back, when you come to work it out in practice it is extraordinarily difficult. That is why, for my part, I could not accept the principle and, further, why I say it is a matter which can be, and is being, investigated."—[col. 1001.]
My Lords, I think the difficulties which successive Governments have experienced in trying to make a comprehensive administrative code show that everything which the noble and learned Viscount said was fully justified. Then he continued by saying:
"Of course, there is not only the question of under what limitations the right of pre-emption shall be conceded; there is also the difficulty about price. At what price is it to be—at a price fixed by the valuer? Or, if the man who was given the right of pre-emption will not accept that, at a price to be fixed by arbitration? Is the fact to be taken into consideration that he has received an additional price for ' injurious affection'; is he to pay something more than the market value for it? All these questions, which I venture to think are of great difficulty, perhaps do not always occur to those who say very freely: ' It is hard luck on a man who has lost his property that he should not have the opportunity of getting it back again '. I agree, but the whole problem is hedged round with such difficulty that I would invite your Lordships to pause before you give your assent to the broad proposition that the right of pre-emption can be simply conceded. All I am content to accept on behalf of Her Majesty's Government is that there is need for reconsideration of the existing procedure and practice for release by the

1451
Government of lands acquired for defence purposes."
That was in February, and it was after the Government had further considered the matter that they then made, in July, the Statement which is called in the Motion before the House the Crichel Down statement. It is very long, but as so often it has seemed to be regarded as a statement which said that in future a man whose land is taken over by compulsory purchase or the threat of it is to have the first right to buy it back if at any time the Government want to dispose of it, I think it is right to be clear about what it really said. The material parts are as follows:
"The Government have decided that where agricultural land which was acquired compulsorily or under threat of compulsion is no longer wanted by the original acquiring Department or immediately by any other Government Department possessing compulsory purchase powers for a purpose for which the use of those powers would be justified, then the land will be sold. This means that transfers of such land from one Government Department to another will not be made in future unless at the time of transfer the receiving Department could and would have bought the land compulsorily if it had been in private ownership.
"Let me give an example to the House of how that will work. Suppose the War Office had compulsorily acquired agricultural land for a training area and no longer wanted it for that purpose. If the Air Ministry currently wanted it for a bombing range and would have taken steps to acquire it compulsorily for that purpose if the land had been in private ownership, the land in that case would be transferred to the Air Ministry.
"It is a matter for consideration whether, except in time of emergency, provision ought not to be made for some form of public inquiry in the event of objection to the transfer by the former owner or other persons interested. Considerations of national security and the possible need for quick execution of essential defence plans would, of course, naturally be important factors, but the land would not be transferred to one of the Agricultural Departments to manage as agricultural land because those Departments would have no power to buy such land compulsorily.
"There is one exception which we must make to this rule, and that is where agricultural land has been so substantially altered in character while in possession of a Government Department that if it were sold it could not be used for agriculture in the same way as when it was originally acquired. The obvious example of this is where an airfield has been made with concrete runways, hangars and other buildings, and the original ownership boundaries have been obliterated. The problem of making the best use of the remaining agricultural land on such an air-field is not an easy one. Often such work
1452
as drainage, and fencing, and sometimes the provision of buildings, is necessary.
"In such circumstances the land may need to be retained in public ownership, at any rate while being rehabilitated, and would be transferred for management of the Agricultural Department concerned. Subject to such exceptions as airfields, these new arrangements will in future preclude the transfer to the Agricultural Departments of agricultural land which was acquired compulsorily or under threat of compulsion by any other Government Department, and this will mean that such a transfer as took place at Crichel Down from the Air Ministry to the Ministry of Agriculture will not happen in future.
"Where land is to be sold in accordance with the general policy I have just outlined, the Government have considered what attitude to adopt towards claims by former owners or their successors to buy it back. The Government recognise that the former owner or certain of his successors may fairly claim that they should be given a special opportunity to buy such land. There may be cases where this cannot be done. The whole character of. the land may have been altered, for instance, by the erection on it of buildings other than agricultural buildings, or. as I have said already, by the laying down of concrete runways on an airfield, in such a way as to make it impracticable to restore the former boundaries; or it may have been compulsorily acquired under the Agriculture Act, 1947: or. again, there may be small parcels of land left over from land acquired for. say. trunk roads or forestry which may not be suitable for resale to the former owners. There are also cases where Departments have statutory powers of acquisition for the purpose of ensuring that land is used in a particular way, and in order to ensure such use they may have to sell it for special purposes. This is true, for instance, of acquisitions by the Board of Trade under the Distribution of Industry Act. 1945.
"These are only some examples"—
I venture to stress that phrase—
"of the circumstances which may relate to a parcel of land and so make any rigid rule impracticable. It will also sometimes be a matter of difficulty to decide whether the successor in title has a special personal claim.
"Nevertheless, the Government will in future consider each case on its merits with the desire that, where circumstances show that the land can properly be offered to a former owner or his successor who can establish his claim, this will be done at a price assessed by the district valuer as being the current market price. This procedure cannot be applied retrospectively; it can only apply to future disposals."
Your Lordships will observe that that was a very general statement. There was no definition of what was meant by "agricultural land". There was no definition of what was meant by "successor". Obviously, there had to be a

1453
greater degree of definition, and accordingly there was a Treasury directive. As the noble Lord, Lord Brooke of Cumnor, knows, Treasury directives are never published because they are internal Government documents which are for the purpose of securing uniformity of treatment in a different field by different Government Departments. Naturally it was not published. In 1957 changes were made by the then Government—I cannot say for what reasons because I have not seen any policy documents; I have seen only the relevant second Treasury directive.
There were apparently four changes. First, the definition of agricultural land in the original Treasury document was altered. Secondly, originally if another Government Department wished to acquire the land and would have been prepared to use compulsory purchase powers for the purpose, the transfer was automatically made. In 1957 that ceased to be automatic, and each case was thereafter considered by Ministers on its merits. Thirdly, a new provision was introduced in the case of land which had acquired, as a result of Exchequer expenditure and development while under Government ownership, a value materially exceeding its value for ordinary agricultural purposes. Thereafter all those cases were excluded. Fourthly, a new procedure was introduced for dealing with surplus land which could not readily be sold back in its original parcels because, for example, of obliteration of the original boundaries. The Treasury directive was not published, but, as I have said, Treasury directives never are published. No statement was made to Parliament that those four changes had been made.
In 1958 there was a further change relating to local authorities. I do not think it has any relevance to this case. I do not know why this was, but, as your Lordships know, succeeding Government'; do not see a preceding Government's policy documents. However, a change was made. There was a Treasury directive, and that was not published. No announcement was made to Parliament that that administrative arrangement had been changed again. In 1966 there was a further change, whereby land was excluded if the surplus land had planning permission for development other than for
1454
agricultural development, or the planning authority said that such permission would be likely to be granted. There has been for some 17 years, as the noble Lord, Lord Brooke, will remember, a procedure under which Government Departments consulted local planning authorities to ask whether planning authority would be likely to be granted or not. This change in 1966 arose partly out of the market price and partly out of the desire to see land used for its best purpose, which is normally the developed purpose. When you have to consider market price, every Treasury directive, and the original Crichel Down statement, made it quite clear that the Government would obtain the market price; and if there is planning permission, or it is expected, the market price changes, because you get a great deal more for it, as happened in this particular case. Again in accordance with precedent, no announcement of that was made.
With regard to Compton Bassett, the facts are that between 1938 and 1942 the Government purchased, either voluntarily or under threat of compulsory powers, 238 acres in order to form a R.A.F. radar station or training school, and 36¾ of those acres—about 15 per cent—came from Mr. Henly. They agreed a price with him. It was known that the land contained sand. No question of development planning permission had arisen at that stage, and the fact that it contained sand was known when the price was fixed. Mr. Henly at that time owned the adjoining farm, but he sold that shortly afterwards and bought a farm somewhere else. He sold it to a limited company which has now unhappily ceased. When it came to a re-sale, his son was owning adjoining land as tenant, as I understand it, of the company who, 30 years ago, had bought it from his father.
Of course, the whole area looks entirely different now from what it did then. It is littered with buildings and some married quarters which are being retained; it has roads, hard standings, the boundaries have long since been obliterated, there is sewerage, and so forth. The 100 acres which are sand-bearing, as your Lordships will see, are coloured green on this plan which I have in my hand. Reconstituting boundaries as well as one could, Mr. Henly's

1455
original property is just about in the middle of three sides of the plan. If you are going to excavate the sand, it is no good excavating for a little bit of sand; you have to stop long before you come to your boundary, otherwise you may let down your neighbours' lands with the excavation. It is unlikely that any sand excavating company would have paid anything like the price per acre that they did pay if they were going to have one little bit of green up at the top of the plan which your Lordships see in my hand, another little bit of green down at the bottom and a further little bit of green at the side, while Mr. Henly's land was not in their occupation.
The noble Lord, Lord Conesford, asked why the noble Lord, Lord Winterbottom, had said that it would not be used as agricultural land. I understand that that was simply because it would be very unusual for anybody to buy at a developed-land price a piece of land for farming, for which purpose it could not be made to pay. The usual reason for paying a higher price for developed land is because you intend to take advantage of development. The noble Lord, Lord Conesford, said that it would have been Mr. Henly's land that would be offered to him. That is not quite the position. Mr. Henly is dead. He sold all the adjoining land soon afterwards. This is his son. Personally he comes within the category of a successor. This has always been another difficulty; there was never any definition of a successor. If he comes in in the capacity of a successor, that is accepted, but that it not quite the case of somebody looking back wistfully at the old days when he himself used to have his own land.
The noble Lord, Lord Brooke, asked about correspondence with Mr. Henly. Yes, there was correspondence between September and December, 1966, when he was told that, for the reason given, he did not qualify. The Parliamentary Commissioner, as has been pointed out, reported—I do not think I need read his Report. He saw all the documents himself, and his conclusion is:
"I have examined the Ministry's Papers in the case. My investigation shows that the Ministry of Defence followed their usual practice and consulted the local planning authority to establish what use of the land would be permitted. They were told in 1966 that
1456
extraction of sand would be allowed from 100 acres in the western half of the site, but the remainder of the site should be returned to agriculture. Included in this 100 acres are the 36} acres acquired from the complainant's father in 1942.
" As a result of the local planning authority's approval for this land to be used for purposes other than agriculture, the Ministry are precluded from giving the complainant first refusal under the 'offer back' procedure. I report that the Ministry of Defence in their handling of this case have acted in accordance with instructions which reflect current Government policy for the sale of surplus land by Departments. I find no evidence of maladministration on their part."
My Lords, the matter was fully explained on January 19 by the Minister of State, Treasury, in the other place, when he said:
" In all cases where surplus land qualifies for consideration for offer back to former owners, it continues to be the policy, as it has been since the statement to the House on 20th July, 1954, by the then Minister of Agriculture that each case is considered on its merits with the desire that this should be done where circumstances show that the land can properly be offered to a former owner or his successor who can establish a claim. All such offers are made at the current market price.
" Accordingly, at the same time as consideration is given to the requirements of any other Government Departments or non-departmental public authorities, consideration is given to the interests of the former owners in cases where agricultural land, which was acquired compulsorily, or under the threat of compulsion although acquired by agreement and held by a Government Department, is no longer required for any of the Department's purposes.
"The current practice is, in general, that the land must have been acquired by the Government Department on or after 1st January, 1935; and at the time of the acquisition or entry into possession must have been used for agriculture, and must be still pre-dominantly agricultural in nature when it becomes surplus to the Department's requirements. Land is regarded as outside the scope of these arrangements, which arc intended for land which is to continue in agriculture indefinitely, if it is the subject of planning permission for development (other than for agricultural purposes, e.g. agricultural storage), or if the disposing Department has been informed by the planning authority that such permission would be likely to be granted, or if the land is intended to be taken for development within the designated area of a new town or a town development area. The former owner (which includes his successor if the former owner is deceased) must be resident in the United Kingdom and must either still own the estate or property of which the Department's surplus land formed a part when acquired, or be known or discovered to be farming in the United Kingdom. If the former owner is deceased his successor for the purpose of consideration for offer back

1457
is the person on whom the property would clearly have devolved under the former owner's will or intestacy but for the Government's acquisition, and may include any person who has succeeded, otherwise than by purchase, to the adjoining land from which the land was severed by the Government's acquisition."—[OFFICIAL REPORT, Commons; cols. 62–63.]
My Lords, the Motion before the House raises, I think, really three questions: first, what was the Crichel Down policy? Second, was there in 1966 an important departure of policy? And, third, ought the changes to have been announced in Parliament at the time? As to what was Crichel Down policy, it was explained in the House, and I have read it. It gave no legal right of any kind to the former owner; it was an announcement of principles in which a discretion would be exercised. It was carefully explained that there would be many exceptions which could not possibly be mentioned at the time, and of which only a few examples could be given. There was no definition of "agricultural land"; there was no definition of "successor". And it was said that each case would be taken on its own merits but that wherever there was a sale it would be at market value.
As to the second question, was there in 1966 an important departure from policy?, I would have submitted not. Administration necessarily develops as points arise. Taking cases on their merits, would it be consistent with the spirit of the original principles, or in accordance with the national interest, to regard it as proper on merits to give former owners and their successors a special opportunity to buy back land which was ripe for development for non-agricultural use? I should have submitted, not.
On the third question, ought the changes to have been announced to Parliament at the time?, I can see very much that this is a matter of opinion. Of course Mr. Henly's son was told about this. It was not offered in a separate lot because he did not qualify, as had been explained to him. If he had qualified, somehow the original boundaries would have had to be resuscitated and the land split up into lots and then, obviously, an entirely different price would have been obtained. There was no attempt to conceal this. There was an Adjourn
1458
ment Debate in another place when Mr. Henly's son's Member of Parliament raised the matter (this was before it went to the Parliamentary Commissioner) in January, 1969. The Under-Secretary of State for Defence for the Army explained. He said:
"The best way of dealing with this is to sell the 66-odd acres of hutted remnants for agricultural use, to sell the 100 acres which includes an inset of buildings in the 66 acres for sand extraction, which would be likely to produce the maximum benefit …"—
and so on. Then he said:
"Each case has been considered on its merits, and the question of what is agricultural land is not always straightforward. One of the difficulties is that, if there is a new planning permission for the land—in other words, if it is taken out of the category of agricultural land—a new issue arises to complicate the matter. That is the position in this case, because the indicated planning permission for sand extraction removes the land from the category of agricultural to that of land indicated for industrial purposes.
" When Mr. Henly's father had the land, of course, it was well known that it had sand in it. However, finding of a detailed survey indicated that planning permission for sand extraction is a new factor which, in the opinion of the Ministry of Defence, prevents the land being offered back to Mr. Henly's son. … Another point which militates against the land being offered back to Mr. Henly's son is that the Government must work in the public interest and obtain the best possible price from the sale of the land. There is no doubt that the 100 acres which includes the small part containing buildings should be sold as one lot to give the maximum advantage.—[OFFICIAL REPORT, Commons; 20/1169, cols. 216–18.]
The question whether the change should have been published is obviously a matter of opinion and of judgment. No attempt has been made to keep this from anybody. If anybody has asked, he has been told. The noble Lord said that letters to Members of Parliament were confidential. I do not quite know why. If a Member of Parliament writes to me, as a Minister, and I write back, it is on a constituency matter and it is not confidential so far as I am concerned. If I am telling him what administrative practice is, he can tell the whole world.
The 1957 and 1958 changes, particularly the 1957 ones, were perhaps more drastic than the 1966 ones. I am not criticising in any way the previous Government, either for not having the Treasury directive published—which no Government of course ever does—or for not announcing in Parliament that those

1459
changes had been made. I have rather wondered by what test one is to judge how far changes in what is pure administration should be published. Perhaps naturally, I think first of my own experience. The appointment of justices of the peace, and how that is done, is, I apprehend, of just as much importance to perhaps a far larger number of people than the position of the landowner whose land is purchased and may or may not subsequently become free for repurchase.
This is very old, because the keepers of the peace date from 1195, and the justices from the middle of the 14th century—not old from my point of view because the first Chancellor was appointed in 605—that is rather longer ago. However, for 600 or 700 years it has gone on. Now no Chancellor, subject to what I am about to say, has ever written down on a piece of paper and published what he does, what are his administrative practices, in appointing justices of the peace. But he must have them, obviously; and of course he has. There were two occasions when he explained it all; because, as your Lordships know, there were a lot of complaints by the Whigs in the last century that the Tories appointed Tories. When the Liberals got in in 1906 they said, "Why should there not be a proper number of Liberal justices of the peace? Why are they all Conservative?" And they appointed a Royal Commission.
Naturally, on that occasion the Lord Chancellor's permanent secretary went along and explained exactly what the Lord Chancellor did, and had always done. They said, "Well, we think it ought to be left entirely to the Lord Chancellor"—and I think it always has— "but we will give him some advice. We think, first of all, that much the most important thing is that the people concerned should be people of integrity and understanding, and regarded as such in the communities in which they live. Secondly, we do not think they ought to have anything to do with Party politics, but as they obviously have had, and we do not see why there should not be Liberal justices, we leave it to the Lord Chancellor to correct this". And they said, incidentally, "We know from you that the only advice you get is from the Lords Lieutenant. We entirely acquit the
1460
Lords Lieutenant of playing Party politics, but they are all Conservatives and friends of Conservatives, so what do you expect? We leave it to the Lord Chancellor, but we suggest that in each county the Lords Lieutenant should have an advisory committee consisting of people of different political and other views, and the Lord Chancellor might like to have the same sort of committees in the boroughs." Then the curtain comes down, because nobody knew what happened after that, although I know and there is no reason why I should not say. Successive Lord Chancellors did their best to carry out the recommendations of the Royal Commission.
This went on until 1945 when the Labour Government said, "Why are all the justices Conservative and Liberal? Why are there not any Labour justices?" They appointed their Royal Commission, and the interesting thing is that, with the gap of forty years, or thereabouts, and starting entirely de novo, the second Royal Commission came to exactly the same conclusion as the first. They expressed the view that politics ought not to have anything to do with it but, as it obviously had had, they said, "We do not see why there should not be Labour justices. The Lord Chancellor must correct the balance". Then the curtain came down again. That did not mean, of course, that there were no subsequent changes.
I have never shirked from explaining to anybody anything to do with the principles on which I administer the appointment of justices of the peace. On the contrary, I read a couple of articles saying it was all very mysterious and implying that there was a good deal of skulduggery, so I wrote a little free booklet, Justices of the Peace: How They are Appointed; What They Do. I invited my inner London advisory committee to my room, I invited the Press, the B.B.C. and I.T.V. I gave them copies of this booklet. I asked the Chairman of the Advisory Committee (who was in fact the noble and learned Lord, Lord Denning) to explain to them exactly why the Advisory Committee chooses this person instead of that person; exactly how they go to work, from whom they get their recommendations. I asked whether there were any questions, and when there were no more questions I

1461
said, "Now we will break up for a drink, and anybody from the Press may come and buttonhole any member of the Advisory Committee and take him into a corner and ask him any question he likes, because I am tired of this idea that there is some awful mystery about this matter." Surely it is important that people should know how appointments are made. But no Lord Chancellor previously has ever published this sort of information. The time arises when an advisory committee says, "This is a first-class man; we are sure he has the whole of the confidence of the local public, but we ought just to tell you that he is blind." Then the Lord Chancellor has to make an administrative decision, because you cannot decide one way in one case and the opposite way in another case. The decision has to be made: are blind people to be appointed to the Bench? The Lord Chancellor said, "No", and subsequent Lord Chancellors have confirmed that view. One day a Lord Chancellor said, "I can tell all my advisory committees that I do not want more than a third of any bench to be members of local authorities". There are good reasons for that decision, and I followed it; and I advised my Committees to cut it down to a quarter. But all I am emphasising, my Lords, is that if every Minister had to publish what is mainly his day's work, administration— every change of administrative practice that was made—the position would be untenable.
This Government have given more information than any Government have ever given before about what is being done. The air is thick with White Papers and Green Papers, statistical returns and forward forecasts, and documents about planning policy. I suppose that we should have about a dozen statements being made every day after Question Time if, every time one decided, "Well, I think in future I will ask the advisory committee to try to limit the numbers of members of local authorities who are on the Bench to a quarter instead of a third", this had to be published. Whether you publish a particular change of administration must be a matter of judgment. It may be that the judgment was not good. It may be that the judgment of the Government in 1957–58 was not good. I rather think that the noble Lord, Lord Brooke of Cumnor, was the Minister of
1462
Housing and Local Government at that time, but I am quite sure that he did not mean to conceal anything.
LORD BROOKE OF CUMNOR: My Lords, will the noble and learned Lord excuse my intervening? I am sure he will know that it is not the Minister of Housing and Local Government who has the last word in settling Crichel Down policy. If I may say so, his elaborate comparison does not seem to me to be an accurate one, because in the case which we are discussing under this Motion the question is whether rights which have been secured to an individual by a Statement in Parliament ought not, if they are to be changed, to be explained fully to the public at large and to the individuals concerned through another Parliamentary Statement.
SEVERAL NOBLE LORDS: Hear, hear!
THE LORD CHANCELLOR: My Lords, with great respect, I think there is a lot to be said for that, but I was only pointing out—as I am sure the noble Lord will find if he quietly reads the actual documents of 1957–58—that every word he has said applied to them, and I think applied more to them. In my view, the changes were more major in 1957–58—and particularly in 1957— but it was not thought right to make a public announcement about it, although I am perfectly certain that that Government, as the present Government, would have made such a statement if anybody had asked them. They did here when they were asked. If any former owner's successor wanted to know what the current practice was, they were told. There was no attempt at concealment. Whether it should have been publicly announced and whether every such change should be announced is very much a matter of opinion. All I can say is that I do not think we consciously followed the course of the last Government. I am not saying that we said to ourselves, "Well, when the Government in 1957 and 1958 made changes they did not announce them to Parliament". I do not think we said anything of that sort at all, but we did in fact take the same course as the Government of 1957–58, and in my submission we ought not to be criticised for having done so.
May I again thank the noble Lord, Lord Oakshott. This is obviously a most

1463
interesting topic. I have been very interested in reading the Crichel Down Report. It is an interesting point and is obviously one of difficulty. Anybody could have legislated since 1954, but the difficulty is the detail—it cannot be reversible, there must be exceptions and, as the noble and learned Viscount, Lord Kilmuir, said, it is almost impossible to get exactly right what the exceptions are to be, whether in the legislation or in the administrative code.
LORD INGLEWOOD: My Lords, on a point of explanation, may I ask the noble and learned Lord the Lord Chancellor one question before he sits down? I do so because I was working very closely with the noble Lord, Lord Crathorne, in July, 1954. May I ask the noble and learned Lord whether he is aware that he really has not done the noble Lord justice, when quoting from his speech in another place at such length, by repeating these lists of exceptions and more than once referring to the fact that there was no definition of "successor" or of "agricultural", because such definitions could not possibly be included in a speech which was already long enough. Furthermore, my noble friend referred to the exceptions so that the general public should be aware that it was not an easy issue. But the real essence of that speech was this sentence:
"Where circumstances show that the land can properly be offered to the former owner or his successor who can establish his claim, this will be done, at a price to be assessed by the district valuer."
That was the sentence in that speech which he considered to be the most important.
5.29 p.m.
LORD OAKSHOTT: My Lords, since a Question which appeared on the Order Paper two or three weeks ago by my noble friend, Lord Denham, appeared rather to discourage the expression by a mover of a Motion, when winding up, of thanks which at times might sound rather hollow, the practice has rather fallen out of fashion. However, to-day I really must pay a sincere tribute and express my
1464
thanks to all noble Lords who have taken part in this debate.
The noble Lord, Lord Pilkington, in a most interesting speech, quoted a paragraph from the Report of the Committee of which he was a member, and it was the very quotation which I was going to use myself, but earlier to-day I told your Lordships I would not detain the House. I, too, was a member of the House of Commons on that day in July, 1954, and it was indeed an occasion of great solemnity. I only hope, and should like to think, that if I had attained high office I should have been able to behave with the same dignity, loyalty and selflessness as my noble friend Lord Crathorne did then. I do not think I could.
The noble and learned Lord, the Lord Chancellor, has given us an interesting dissertation upon the appointment of justices and the reasons why these administrative acts are not published. He will forgive my saying that I am not sure how far that really applies in this case. He does not appear to me to have answered the Question: for what reason did the Government decide in 1966 that development value should deprive the original owner of his rights, and why should these changes be kept from—perhaps it is going too far to say that—or not disclosed to Parliament? I am grateful to him for the trouble he has obviously taken and for his courtesy in coming down to the House to answer this debate himself.
I cannot pretend that I am absolutely satisfied with the position. I appreciate the difficulties of legislation, and I did not suggest in my speech that that was a potential way out, but I do come back to what I said originally: that where instructions are made which affect the rights of an individual and, as I think, are major departures from accepted codes of practice, they ought to be made public and should be disclosed to Parliament. That is all I have to say in winding up the debate, except just to repeat my thanks to noble Lords who have taken part and to the noble and learned Lord on the Woolsack for his courtesy. I beg leave to withdraw my Motion.
Motion for Papers, by leave, withdrawn.

GAME BILL [H.L.]
5.32 p.m.
LORD DERWENT: My Lords, I beg to move that the Commons Amendment be now considered.
Moved, That the Commons Amendment be now considered.—(Lord Derwent.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[References are to Bill 110 as first printed for the Commons]
Clause 2, page 2, line 20 at end insert—
("(2) Nothing in this Act extends to Northern Ireland,")
LORD DERWENT: My Lords, I beg to move that the House doth agree with the Commons in their Amendment. The Amendment is quite a simple one. Anything to do with game law in Northern Ireland comes under the jurisdiction of the Northern Ireland Parliament, and all this Amendment does is to say that this Bill does not apply to Northern Ireland. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Derwent.)
On Question, Motion agreed to.

RETENTION OF RUDOLF HESS
5.33 p.m.
VISCOUNT AMORY VISCOUNT AMORY rose to ask Her Majesty's Government whether, while not forgetting the abominable inhumanities and horrors of the Nazi régime, they are aware that many people feel that the continued retention after 28 years of Rudolf Hess, an old and sick man, in substantially solitary confinement, is not in accord with this country's traditions of magnanimity and humanity, and whether they will make a statement. The noble Viscount said: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper. I ask this Question with some diffidence, because I know that there are many noble Lords who know the circumstances of this case far better than I do.
I should also like to assure the noble Lord who is going to reply that in asking this Question I have no desire at all to
1466
criticise the conduct of Her Majesty's Government. I am only sorry, like other noble Lords, that their actions to date have not been successful; and I am sure they share our regret over that, too. I am quite sure that Ministers are influenced by the same considerations of humanity that have inspired this Question. The object really is to place on record the deep concern, felt. I am sure, by many Members of this House in a matter in which concern has been expressed on a number of occasions in another place. I think it likely that the noble Lord, Lord Chalfont, when he replies, may say that he welcomes rather than resents the Question that we have before us.
I understand that certain Members of another place hesitated to add their names to the list of 192 signatures to a Motion which had much the same object as this Question, on the ground that by doing so they might seem to be "whitewashing" Rudolf Hess. I am confident that there is no risk of that at all. British public opinion has never wavered in its detestation of the Nazi régime and all it stood for, and the men who inspired it and led it. Rudolf Hess was one of them and must clearly not be exonerated from a share of that odium. He was, however, adjudged by the International War Crimes Tribunal not guilty of crimes against humanity, and he was convicted of a lesser offence. My noble friend. Lord Salter, I know, was at Nuremberg at the time and has, I believe, grave doubts about the state of health of Rudolf Hess at that time. I hope very much that my noble friend may give us the benefit of a few observations on this matter in a few minutes. In passing, may I say that it fell to my lot to spend seven months, after being wounded, as an enforced guest of the S.S. It was an interesting experience, but I did not like them a bit.
The reason, I am sure, for the feeling, which I believe is widespread in this country, that the time has come after 28 years to release this sick old man is that the bestialities of Nazism afford no reason why the Western nations in our own conduct should fall short of the traditions of civilised conduct on which we pride ourselves as part of our free way of life. A desire for retribution for its own sake is surely not a principle of our way of life. The words used by

1467
Mr. George Thomson, when replying to a Question in another place on this matter, seemed to me good. He said:
"The time has come when humanitarian considerations should prevail".
I believe that that sums up well the general view. If we are realistic, we are well aware that there are unfortunately occasions when international policies and national policies have to take precedence over considerations of individual justice and humanity. I am not advocating a unilateral breach of a Four-Power agreement, if that is involved. I should like to know from the noble Lord who is to reply whether we have a veto that can be used effectively to attain the object which many of us want.
What I am pressing the Government to do is to step up their efforts to secure re-negotiation of this agreement which prevents the termination of the ridiculous ritual whereby four military contingents continue to guard this frail old man of 75 as the sole prisoner, I believe, in Spandau Prison. As a supplementary question, if that is in order, I should like to ask whether Rudolf Hess's return from hospital to prison, which I understand has taken place, required Four-Power agreement. But the main question I want to ask the noble Lord is this. I understand that the last formal approach to the Russians was in the early summer of last year—though I may be wrong in that. But, in any case, will the Government seek to persuade the other three Powers to join them in making combined new representations at the highest level to the Russian Government to agree to the release of this man, after 28 years of confinement, now substantially solitary confinement, so that, if possible, humanitarian considerations shall prevail and, if not, the world will be clear with whom the blame lies.
5.40 p.m.
LORD SALTER: My Lords, if I may refer to what my noble friend has just said, I was present at the Nuremberg trial. It so happened that on that day I sat within a few yards of Rudolf Hess. I watched him with great care for several hours, and I came to the conclusion that, whatever he might have been in the past or might again be in the future, at that time he should not have been convicted because he was not, in the strictest sense
1468
of the phrase, a sane man. I was absolutely convinced of that on that day, at that time; and when I returned home I did whatever I could to get any relevant information as to his state at that time. I am saying nothing about the earlier time. All the information I obtained afterwards confirmed entirely my own judgment, that at that time he should not have been convicted and was not a sane man.
5.42 p.m.
LORD WADE: My Lords, I am extremely interested to hear the comments of the noble Lord, Lord Salter. The noble Viscount, Lord Amory, has presented this issue fairly and persuasively, and the wording of the Question to which he has directed his remarks is most appropriate. I do not wish to repeat the observations of the noble Viscount, but it seems to me, putting the matter in a few words, that really three pertinent questions arise. First, is this a case where a humanitarian approach is justified? I think it is. Secondly, are there any precedents to follow in such a case? Thirdly, if the answer to both those questions is in the affirmative, what can Her Majesty's Government do about it?
As to the first point, I agree with the noble Viscount that here we have an old man who is sick, and who has been in prison for 29 years. Although, as I understand the Soviet Union pointed out, Rudolf Hess was responsible, at least in part, for the building up of the Nazi Party and of the S.S., he was not convicted of war crimes or of crimes against humanity. Of course I am not in a position to comment, as has the noble Lord, Lord Salter, a few moments ago, on his state of mind at the time of the trial. But, clearly, his was not found to be one of the worst crimes.
As to precedents, it is not easy to find many precedents in this kind of case. But is it not correct that Raeder and Funck, who were serving life sentences, were released with Soviet consent on grounds of age and health? Surely we there have a precedent which could be followed. In the light of that, it would be interesting to know what, if any, explanations have been given by the Russians for their objection to the release of Rudolf Hess. Can the noble Lord in

1469
reply give us any information as to whether the matter has been discussed in the light of these other two cases?
As to what Her Majesty's Government can do, I understand that representations have been made by our Ambassador in Moscow. I think it would be helpful to clear up this point as to whether Her Majesty's Government have any right of veto; that is to say, what exactly were the rights of one Government when the time came for Rudolf Hess to be returned from hospital to Spandau. In a letter which I have here, written to Mr. Airey Neave, the son of Rudolf Hess, who is naturally most distressed about this matter, refers to his hope that the British Government would exercise their right of veto.
I do not wish to say anything that would appear to belittle the importance of the case raised by the noble Viscount, but I think this should be clarified. Is this a case where all four Powers must agree before Rudolf Hess can be released from prison; or is it a case, as appears from the letter to which I have referred, that the British Government were in a position to exercise a right of veto? In other words, did it require the consent of the British Government before Rudolf Hess was returned to Spandau? There is a difference between the two views. I imagine that the true position is that the four Powers must all agree before he can be released, and that however much we may regret it, it was not within the power of Her Majesty's Government, under the Agreement, to refuse to return Rudolf Hess to Spandau. Be that as it may, this seems to be a case embracing strong humanitarian grounds, and I hope that representations can be made at an even higher level than those made by our Ambassador in Moscow; and I look for-ward with interest to the reply of the Minister.
5.47 p.m.
LORD ARDWICK: My Lords, I am afraid that whatever we say to-day is going to be of little practical value. The Russians have decided that Hess is to remain in prison, and as his release four Powers, that more or less ends the matter. The probability is that he will die in Spandau as a prisoner, or die as a prisoner in hospital. His only real hope would, I think, require the consent of all is that one day a détente may produce
1470
an agreement about Berlin; but that is a slender hope for a sick man who will be 76 years of age in a few days' time.
So hopeless, I think, is the immediate situation, that we might almost be accused of indulging this afternoon in a kind of moral luxury as we deploy arguments that cannot have much utility. But I think there is one good reason that we should do so. This is the first discussion that has been held on the matter since our hopes were disappointed and Hess was taken back from hospital to prison. Until that happened it was possible to hope that some way—some fiction, some device, some pretence that he was on ticket-of-leave—would be found of keeping him out of that grim and lonely prison, so that the Russians would not lose the right that they value so highly to retain a military presence in West Berlin, as one of the guardians of Spandau. Of course the importance attached to that right is ridiculous, but it is on a number of such agreements that the fragile system in Berlin is held together.
Although I am in complete agreement with the noble Viscount who has put this Question, nevertheless I hope that the Government will not agree to this declaration or, perhaps, not in the form which the Question implies, because I think that, quite unwittingly, it implies a moral rebuke for the Soviet Union and would merely irritate the Russians, with whom we are going into conference to-morrow. The four ambassadors are meeting in Berlin to discuss questions of access to Berlin.
In view of what the noble Lord, Lord Wade, said about the action taken by the Russians in regard to Raeder and Funck, and I think von Neurath, I am not sure that we can accuse them simply of inhumanity in this particular case. I think that the treatment of Hess would be the slightest of all the charges of inhumanity that are made against the Soviet Union. I think it can be under-stood if they see the last member of the high Nazi leadership left alive as a symbolic figure, a kind of living war memorial. He is the opposite to that haunting design of Reg Butler's of an unknown political prisoner; Hess is the world's known political prisoner, and an ex-member of that criminal Government which condemned millions to a fate which

1471
makes Hess's own fate seem to be an indulgence.
Of course, the campaign waged by Mr. Airey Neave for his release is a noble one, and has brought the most remarkable examples of compassion from people who suffered all the horrors of the concentration camps. But a number of people have been trying recently to minimise Hess's offences, and I think that is an error and a wrong tactic. If Hess was one of the less heinous war criminals, his complicity in the pre-war criminality of the Nazi Government is sufficient. The case for his release does not rest on the fact that he was less black than Himmler, or that he was merely a cracked romantic, as Hitler himself was.
But even if Hess's record were worse than it is, it would still be wrong to go on playing this tragic farce of Spandau. He has been a prisoner for 29 years, deprived of his freedom—it is terrible to contemplate—since the days when our children were the age our grandchildren now are. His evil seems to belong to history. It was done at a time when most of the statesmen alive to-day were still unknown young men, and of course the battered old man in Spandau is not the same man as the one who flew to Britain in 1941. All that is asked, I think, is not an act of forgiveness, but simply that we should cease from punishing a man who has exhausted his capacity for punishment. One of the most terrible things that was reported was that when his wife and son went to see him they were not allowed to kiss him or even to touch his hand. Apparently, what lay behind this was the fear of his gaolers that so wretched was his existence that his wife or son, out of pity, might slip him something which would enable him to bring that life to an end.
I think the Russians should understand that the desire in this country for Hess's release, which I think they find difficult to understand, is not created by retrospective softness towards German Nazism; it is not created by any attempt to minimise his guilt, or even by a kind of current fashionable sentimentality. I think it may be the mark of a civilised people, or perhaps the residue of a Christian conscience, which causes us to feel that there must be a distinction be-
1472
tween imprisonment for life and imprisonment until death. Just over a hundred years ago an English Judge, Lord Wensleydale, gave these views to a Royal Commission:
"Imprisonment for life would be a punishment of great severity if rigidly carried into effect, but it never could be. The criminal condemned to perpetual loss of liberty would. in the course of time, become an object of pity, and the public sympathy being excited the sentence would be ultimately remitted."
The British people have not changed over the last hundred years. I think we have this curious feeling, that a man who has been in prison for a long time should be allowed to breathe a little of the air of freedom before his death. Perhaps the most solid hope now is that Hess's conditions of life in Spandau, which have been very much improved since his return from hospital, could be made better still. I hope the British Government will plead that he should be allowed more visitors if he wants more visitors.
Whatever we do, we must not take any risk that would jeopardise the new hopes of humanising the general situation in this divided city; hopes that are being created largely by the meeting of Herr Brandt and Herr Stoph. The Berlin Wall divides parents from children, divides lovers and divides husbands from wives; and those who try to climb it can be shot. It is the hope of improving conditions in Berlin generally on which I think we must fasten to-day. Spandau represents a symbol, I should have thought, that is no longer needed. It is sad that the four Powers cannot agree to get rid of it; yet I think there are higher priorities for British policy in Berlin, and the Government well recognise it.
5.56 p.m.
THE LORD BISHOP OF NORWICH: My Lords, I must first thank the noble Lord, Lord Robertson of Oakridge, for allowing me to precede him and to make the briefest remarks. I hope that I may have the indulgence of your Lordships for not giving previous notice, and also for the fact that, on account of duties in my diocese, I have to leave this House immediately after I have spoken. I am sure that if this Question had not come up on the eve of Maundy Thursday, there would have been other speeches from this Bench.
I want simply to thank the noble Viscount, Lord Amory, for raising this

1473
matter, and I wish to support as strongly as possible the plea that he makes. I appreciate the warning notes which the noble Lord, Lord Ardwick, has given in respect of the other factor (which all of us desire to see)—namely, the breaking down of that Wall. But I feel sure that the views that have been presented by the noble Viscount, Lord Amory, would command the support of the Christian conscience of all nations and would, I believe, meet with the support of the conscience of the great majority of our citizens. This is surely an instance where a humanitarian approach is overwhelmingly justified and could not, in all the circumstances, be interpreted in any way as condoning the Nazi regime and Rudolf Hess's part in it.
5.58 p.m.
LORD ROBERTSON OF OAKRIDGE: My Lords, the trial of the war criminals at Nuremberg was carried out a very long time ago—at least it seems to me a very long time, and probably also to your Lordships. No doubt it has seemed much longer to the man who has spent these 28 years in prison at Spandau under very hard conditions. Shortly before the trials came to an end, I received a message from my good friend, the noble Lord, Lord Strang, which said that London thought it desirable that he and I should be present at Nuremberg on the day the sentences were pronounced. With considerable reluctance I did as I was told, and I went there. To this day, I can still see the faces of those men, 22 of 24 of them, as they listened to the judge pronouncing the sentences passed on them.
One face that I remember with particular distinctness is the face of Rudolf Hess, who sat gazing at his boots and the floor, apparently taking no notice of what was going on, and indeed no notice of what the judge had to say to him. I am not surprised that the noble Lord, Lord Salter, said he was convinced that the man was "crackers". I thought so, too, but it was not for me to judge that. The execution of those condemned to death followed shortly afterwards, and arrangements were made by the Control Council for the imprisonment at Spandau of those sentenced to imprisonment. Of those prisoners only one now remains —Rudolf Hess.
1474
I myself had no protest, and have no protest, to make against the judgment passed on him. I accept what has been said by the noble Lord, Lord Ardwick, and I think it would not be very wise of us to protest against the judgment passed on Hess, or to protest against his treatment. He was fairly tried, and at that time it seemed to me that a sentence of imprisonment for life was a reasonable one to pass on a man who had done such evil things in the past. As for my colleagues on the Control Council, I speak with some confidence in saying that General Clay saw things in the way that I did.
It fairly soon became apparent to General Clay and to me that the conditions under which the Spandau prisoners were held were, to put things plainly, brutal. We made frequent attempts to have more reasonable conditions accepted, but for the most part without any success. It is good to know that now, at last, there has been some alleviation of those conditions. But that is not, of course, the whole of the story. It also became plain to General Clay and to myself that to keep this poor, silly old man in prison for the rest of his life would constitute a cruelty, an inhumanity, of a dreadful order. But no appeals made by us or by our successors through the years have made the slightest difference; and that is how things remain to this day.
It is difficult, for me at all events, to understand why those who insist on this dreadful punishment do so. Certainly, the man Hess is completely harmless, and has been for a long time. Nothing is gained by keeping him in prison, and the good name of those who are responsible for doing so is besmirched. But one thing I should like to make very clear—and I suspect that when he winds up this debate the noble Lord, Lord Chalfont, will make the same point—is that if Hess is to be let out of prison, it can happen only in one way; that is, by quadrupartite agreement. It was often suggested to me that the Americans and ourselves should force this issue: that we should just release Hess when it is our turn to guard him. No, my Lords: I have never been of the opinion that that would be a wise thing to do. Throughout my life I have gone on the principle that you should not put your hand to a

1475
plough unless you are prepared to drive that plough to the end of the furrow. The end of this furrow might be very unpleasant, and I do not think we should put our hand to that particular plough.
In his Question, the noble Viscount, Lord Amory, has used the words:
"while not forgetting the abominable inhumanities and horrors of the Nazi régime".
It is right to put in those words, and it is right to remember that nobody suffered more from those inhumanities than the Russians did. That is a wise thing to remember. But what, then, are we to do? When this matter was last debated in this House (in, I think, February, 1966), a visit was expected from Mr. Podgorny and Mr. Kosygin to this country, and several of your Lordships, including myself, recommended that our Prime Minister should take up this question of Hess with his Russian visitors. I do not know whether he did or whether he did not. No doubt our Prime Minister found many things to talk about, and that will always be the case. But if anything is to be done now, I am sure that it can be done only in one way.
Somehow or other, the Russians have to be convinced that their attitude in the case of Hess is completely pointless, is doing no harm to their enemies and is doing no good to themselves. They have somehow got to be made to realise those things.
What is their purpose in keeping him there—this poor, silly old man? Is their purpose to punish Hess? My Lords, you cannot punish a cabbage or a turnip, and that is what Hess is, these days. Is it their purpose to punish the German nation? How many Germans are there to-day who have ever heard of Hess? And there is certainly none who has any interest in him. Is it their purpose to score over their allies? Well, my Lords, in that perhaps they have some success; but in the process they are certainly sacrificing their own good name as a civilised nation.
If anything is to be done about this, I am sure that it must be done at the highest level. My very feeble suggestion, that our Prime Minister should talk with his Russian guests, was not in itself enough. I believe that, if anything is to be done about this, an appeal must be made to the leaders of the Russian
1476
people by the leaders of the United States of America, Great Britain and France—if France will join us. It may have no effect; that may well be so. But there is some chance in it, and if that will not succeed then I am afraid that nothing else will. I add to that, with considerable temerity, the suggestion that if the Germans could be persuaded to include in the statement which they issue after their present conversations a statement showing that Germany and the German people are not soft towards the leaders of the Nazis of the past, are not interested in softness towards Hess or anybody of his like, that might just help. That, my Lords, is the suggestion that I dare to make.
6.8 p.m.
LORD SHERFIELD: My Lords, I am grateful to the noble Lord, Lord Gore-Booth, for agreeing to switch places with me in the batting order, for a reason which may prevent my being here to hear the noble Lord, Lord Chalfont, wind up, although I hope it will not do so. I am intervening in this debate in support of the noble Viscount, Lord Amory, largely for historical reasons. I was in the Foreign Office when Hess landed. Mine was the department concerned, and the matter was handled with such secrecy that in fact I kept all the Hess papers under my own hand for over a year and I have never lost interest in the case.
We were temporarily stunned by this extraordinary event. The first problem was one of identification, since the Duke of Hamilton, whom Hess had come to see, had never met the Deputy Fuehrer. Mr. (later Sir) Ivone Kirkpatrick had known Hess in Berlin, so he went up to see him and ascertain the facts, which were of course very hard to believe. But it was soon established without any doubt that Hess had come entirely of his own volition, that he had no message and no useful information, and that so little was he in Hitler's confidence that he did not even know about the German preparations to attack the Soviet Union. One of the official historians has written:
"No information of value was obtained from Hess. He declared that Germany had certain demands on Russia which would need to be satisfied, but denied rumours that an attack on Russia was being planned."
Hess had the odd notion, derived, apparently, from Professor Haushofer

1477
that Britain was largely run by Dukes who reported to His Majesty the King. His ignorance of affairs in Eng1and as well as of the policy of the Nazi Government was in itself abnormal.
After the facts were established, Hess was treated as a psychiatric case. As a potential war criminal, he had in any event to be kept in close custody. He suffered while in captivity from paranoia and, at times, hysterical amnesia. He made two attempts to commit suicide, and had bouts of acute persecution mania. He was in the technical sense a psychopathic personality. Indeed, he has been called the most interesting psychiatric case of the first half of this century. Yet when he came to stand trial at Nuremberg he was found fit to plead on the unanimous recommendation of a distinguished group of American, British, Russian, Canadian and French psychiatrists and physicians. The explanation, my Lords, is undoubtedly to be found in psychology. The only reason for Hess's rise to the position of Deputy Fuehrer was his total dependence on and loyalty to Hitler. Already demoted and pushed aside at the beginning of the war, he was deprived after his flight to England of Hitler's presence, and was indeed repudiated by him. So he went off his head. But at the trial he was once more in a position to play a leading role and to steal the limelight. He therefore recovered his memory and was able to apply his not inconsiderable intelligence to the preparation of his defence. But he suffered again during the trial from a long period of hysterical amnesia, and an ordinary person would still regard his behaviour as crazy, as indeed did his Nazi colleagues in the dock and, as we have heard this afternoon, as did Lord Salter and Lord Robertson.
Sir Winston Churchill summed up the matter superbly in The Grand Alliance. He wrote:
"I am g1ad not to be responsible for the way in which Hess has been and is being treated. Whatever may be the moral guilt of a German who stood close to Hitler, Hess has in my view atoned for this by his completely devoted and frantic deed of lunatic benevolence … He was a medical and not a criminal case, and should be so regarded".
Yet 28 years later this wretched man is still in Spandau Prison, alone and guarded by large detachments of troops,
1478
as has been described this afternoon. He was not sentenced to death but to imprisonment for life. In any normal system of justice, as the noble Lord, Lord Ardwick, has pointed out, there would have been remission long before this. He must surely now be regarded as having expiated the crimes which he committed or condoned in the 1930s.
My Lords, I assume that at all events Her Majesty's Government and the United States Government have endeavoured to obtain his release and to wind up this sad affair, and I suppose their failure must be ascribed to two main causes: the attitude of the Russians and the situation in West Berlin. It has been well said that totalitarian systems claim the authority of a religion over their followers without acquiring the power of grace and forgiveness. Compassion is not a quality of Soviet behaviour, and justice tempered with mercy does not appeal to them. Furthermore, I have heard (though I do not know with what truth) that there are some grounds for thinking that the Russians have a particularly strong feeling about Hess because he was supposed to have been mixed up in the Tuchachevsky affair in the 'thirties.
But I suppose that the situation in West Berlin is probably more important. It is now some three years since I was there, though I do not suppose the situation has changed very much. Already at that time I was reminded of the typical fairy story situation in which the wicked fairy immobilises the king, the queen and the courtiers and they remain immobilised through the years until the good fairy comes to bring them all to life. So, in Berlin, I had the impression of a situation which had been frozen while events in the world moved on. It was a place where the French were collaborating with their allies in contingency planning, were taking their full part in allied affairs and were accepting orders from the NATO commander; where the irregular wire perimeter had remained immutable for 20 years; where the centre-piece was the ritual in Spandau Prison. There the representatives of the four controlling Powers paid a monthly visit to Hess and at that time two colleagues, and I believe usually turned down simple requests from these prisoners. This ritual appeared to be the remaining miserablevestige of quadrupartite control.

1479
My Lords, I can well understand that there is a substantial case for maintaining this regime in West Berlin and that there are advantages of one sort or another for all the parties involved in keeping the situation frozen. It may well be that any attempt to change any part of this structure would bring the whole thing down like a house of cards, and that Spandau is the keystone of the arch—and what was said by the noble Lord, Lord Robertson, who knows so much about these things in effect confirmed this. But I wonder—and perhaps this is only a variation of the questions which have already been put to the Minister—whether Her Majesty's Government consider that a strong pressure to release Hess and to wind up this farce at Spandau would after 25 years have serious repercussions and threaten the continuance of the present arrangements in Berlin.
6.17 p.m.
LORD THORNEYCROFT: My Lords, I rise, not for the first time, to support the noble Viscount, Lord Amory. I do so, as I think do many others who have spoken in your Lordships' House, with some hesitation, if only for this reason. I share with Lord Ardwick a certain difficulty in identifying what really useful question anyone can expect Her Majesty's Government to answer on this matter; and I have a sense that it would be very easy to say things that would make matters worse, for small things and for great, if one was not cautious in this debate. So I certainly would not press Her Majesty's Government to say anything which in their view would endanger a delicate political balance, or might do real harm to the cause which the noble Viscount has in view.
I do not myself think that it is useful to say anything in mitigation. I share the doubts expressed by other noble Lords as to what extent Hess has ever had more than a tenuous hold on sanity. But the same doubts might be expressed about others who played a part in those events; and to re-open that question now is not, perhaps, of great help. If one looks back on those days and considers either the crimes of which Hess was convicted, the crimes against peace or
1480
the crimes which I think the Russian judge the day after the final judgments were made tried to re-open—the war crimes; the horrors which were committed then—and if one looks at the things that were done not only by Germans against Russians but by Germans against Germans, the mind recoils with horror from the contemplation of them. And if we remember, as I suppose we ought to remember, not simply that these things were done by Germans but that they were done by human beings, it may lend a certain point to the words in which we were taught to pray:
"Forgive us our trespasses".
For, indeed, some of these things are unforgivable by any ordinary man. In the event, a handful of these men were tried at Nuremberg, and some, perhaps the most fortunate, died. Others were put into prison. Some of those have died; some, I believe, have been released, I imagine by agreement; and this one man hangs on there.
Really, the only point that I can make is the one that we have often discussed in your Lordships' House. It is concerned with the philosophy of punishment: that there comes a point where punishment begins to degrade the captor more than it degrades the captive. I think that the message that we should ask Her Majesty's Government to convey, with dignity and without recrimination (because there is no good in having recrimination in these matters) is that a very large number of people in this country, of no common political persuasion but drawn from every kind of political opinion, have reached the view that this wreck of a man has passed that point, and passed it some time ago.
As to the Russian point of view, it is, of course, in part dictated by emotion. But they are not alone in that; the emotions felt in this country about what was done in those days are probably as sharp and deep as those held in Russia. So we are not isolated from the Russians on that side. And I suppose that part of it also is this political point of having a foothold in Berlin. Indeed, in a world which is very much divided footholds are perhaps rather a good thing. But one perhaps tends to put to the Government—I do not ask them to answer it—the question: Is it not possible to find some foothold which is less macabre and rather

1481
more permanent than guarding this one, isolated, miserable man who cannot, in the very nature of things, last for very long?
I would commend the Government on what slight ameliorations they have achieved. I understand that he is awakened a little less early or allowed to go into some garden. I assume—and if it be true it might be useful to state it—that agreement was reached with the Russians on these matters on his return to Spandau; and they, too, should be associated in any commendation I make. I think that the most that we can ask is that Her Majesty's Government should seek, to the best of their ability, to extend this amelioration somewhat further —to allow him, if he wishes it (and for 25 years he did not wish it) to have some visits from a friend or relative; he is almost bound to have to remain in some kind of confinement in some hospital or something of that character—and to put our view, for what it is worth, to the Russians. It is a view put by many people in this country who believe that the growing strength of Russia in a weak and dangerous and rather divided world is probably a force for peace rather than for anything else, and with the know ledge that the stronger a country is and the greater it grows the easier it sometimes becomes to make concessions.
6.26 p.m.
LORD GORE-BOOTH: My Lords, there is clearly no disposition in this House to disagree with the presentation of this Question by the noble Viscount, Lord Amory, or the manner in which he has asked the Government this Question. I cannot speak with such a lifetime of experience of contacts and dealing with other countries about Hess as have several other noble Lords. I simply have the poignant memory of the time when this flight to Britain happened in 1941. I happened to be the temporary editor of a weekly bulletin at the British Embassy in Tokyo, and I remember writing an inadequate epigram that the Nazi leadership had now one Hess less. Now we have the ironical situation that there is nobody left of the Nazi leaders except one Hess.
I agree with the noble Lords, Lord Ardwick and Lord Thomeycroft, in feeling that in putting this Question we
1482
should not base ourselves on any thesis that Hess was rather less bad than anybody else. This case has been proved, but for the purposes of our own arguments, and what we wish to-day, I think it is better to proceed on the basis that there is no glamour about Hess: there are no votes for Hess. The British nation owes nothing to Hess, and the German nation have no claim on his behalf since they have so long and so fully repudiated the actions of that régime. The matter is surely one of our own conscience, and that is why, when we read that Hess had been conveyed back from a British hospital to his lonely special prison, we felt a little thud of gloom inside; because what we were being made to do was to treat one of our former enemies in the way they would surely have treated us. The noble Lord, Lord Ardwick, said that Hess was treated as something of a symbol. Yes, my Lords, precisely. We believe in treating people as people and not as symbols. That is why one feels now so grieved.
The reasons for retaining Hess in prison seem so thin and inadequate. It is ludicrous to suggest that his release presents any danger. His continued confinement is not demanded by people anywhere, unless of course they are ordered to demand it; and on the principle which the noble Lord, Lord Ardwick, made clear, confinement for life in the end transforms itself into a feeling of commiseration. After all, in this case retribution—and I think that some retribution was perhaps understandable—has now turned into persecution.
May I present the story in another way. In a year or two, let us hope a little time ahead, a history will be written of this subject. One comes to a point in one's imagination where there are two possible passages. One passage will read: "Finally, after some 30 years confinement, Rudolf Hess was allowed to spend his remaining years (or months) quietly with his family … "The other, alternative, passage would read: "After some 30 years the Allies still insisted that this old man, sick in mind and body, should die in solitary confinement, in terrible loneliness". My Lords, I do not want to read that paragraph.
One is not naive about mercy. One knows, as indeed a noble Lord has said this afternoon, that sometimes individual

1483
inclination to mercy must be subordinated to public security or the public weal. The time for that has now gone; and enough is enough. So I join with noble Lords, not in any criticism of the Government, who I know have done their best, but rather in the hope that they will use all possible importunity, ingenuity, in seeing whether something cannot still be done. On this I am much less pessimistic than the noble Lord, Lord Ardwick, suggested. It is possible in the practice of diplomacy to isolate one question on which there are deep feelings from the whole range of public opinion and to present it to another Government in such a way that the feelings about this individual question are understood; and this may lead, not perhaps directly, not immediately but in fact, to some kind of settlement.
So, my Lords, I hope that Her Majesty's Government, whose difficulties in this case I understand only too well, will feel able to press on with this matter, not waiting to be reminded by the noble Viscount or by any of us, or by the Press, but as and when they can, and that, if not at a spectacular level, certainly at a high level, to see whether our partners in Berlin cannot understand the depth and breadth of the feeling about this matter in this country. In this matter the quality of mercy has been very much strained. I hope that it may still bless him who gives and him who takes— before it is too late.
6.32 p.m.
LORD CACCIA: My Lords, may I intervene just for a moment since I, too, like other noble Lords who have spoken, Lord Salter and Lord Robertson of Oak-ridge, was at Nuremberg. I was there in my capacity as Chairman of the Joint Intelligence Committee, and I stayed with the presiding judge, Lord Justice lawrence (as he then was: later Lord Oaksey), since he was my uncle by marriage. Perhaps, as he is not here to-day, I may be allowed to repeat what he has said in public—and I checked yesterday that this is still his view: namely that the trial was fairly con-ducted; that, as your Lordships have heard, Hess was judged fit to plead, and the judgment was a valid and fair judgment which Lord Oaksey had no reason to go back on.
1484
At the same time, he has said, and said in public, for the last three years (or it may be four years) that he thinks the further detention of Hess in the circumstances in which Hess now is— whatever he may have been from one time to another either before or during the trial—and without contravention is point-less and (as the noble Viscount's Question puts it) against all traditions of humanity. Therefore, so far as he is concerned, he would, I am sure, share entirely the view expressed.
Beyond that there is the question: what then can we reasonably ask the Government to do? Anybody who has been Permanent Secretary at the Foreign Office cannot possibly get up and ask the Government to break their word, even to the Russians; and that the noble Viscount most certainly did not do. I am sure that the sense of this House is that we do not wish to press the Government to do, or even to go on record as saying, anything which in their judgment may damage the case which we have every reason to think they would share on grounds of common humanity. Therefore, my Lords, I conclude by saying this; that the noble Viscount has only asked "Whether the Government will make a statement". I should have thought those extremely prudent words, and words which do not press the Government to go any further than they think is justifiable and reasonable in the circumstances.
6.35 p.m.
LORD INCHYRA: My Lords, I hope that I, too, may be permitted to intervene for a very short time. My excuse is that I suppose I must be one of the very few Members of your Lordships' House who not only saw Hess at Nuremberg but who actually visited him in Spandau. That was when I was High Commissioner, or Ambassador, in Bonn, getting on for fifteen years ago. I am bound to say that even then Hess struck me as being in very poor shape indeed, physically and mentally; and I would agree entirely with what the noble Lords, Lord Salter and Lord Robertson of Oakridge, said. I could get no sense out of him at all and I do not think that was altogether my fault. It was perfectly clear then that it was very inhuman to keep him in prison any longer. He could do no harm to anyone

1485
—and that is even more true now, fifteen years later. I may be wrong in my recollection, but I think that while I was there, or just before I got there, one of the other prisoners (there were several others who were sentenced to a definite term of so many years) was released prematurely, before the completion of his term, on the grounds of ill-health. So there must be a precedent for allowing prisoners to be released on grounds of ill-health.
My Lords, I would agree entirely with what was said by the noble Lord, Lord Caccia. I cannot believe that the judges who sentenced Hess—he was, I think, the only one at Nuremberg to be sentenced to life imprisonment—really meant life without any possibility of remission for ill-health. I wish I could suggest some way in which the Government could lake more effective action than they have been taking. I entirely agree with what was said by the noble Lord, Lord Robertson of Oakridge, that we must not get entangled in anything which might imply the breaking of the Four-Power Agreements over Berlin. It is not quite as easy as the noble Lord, Lord Sherfield, suggested. It is not just a question of Spandau; there are a number of other Agreements and considerations which are valuable and which must be preserved, not so much in our interests as in the interests of the Germans themselves.
I am afraid that all I can suggest is that the Government should continue to do what we all know that they have been doing for several years past; that is, to endeavour to persuade the Russians to see reason in this matter. One would like to suggest that the Russians could be convinced by public opinion in foreign countries, but that does not seem to work with the Russians. I can only urge the Government, as I am sure everybody else would, to continue to do their utmost, in conjunction with the Americans and the French, to persuade the Russians that it is really in their own interests to allow Hess out.
6.39 p.m.
THE MINISTER OF STATE, FOREIGN AND COMMONWEALTH OFFICE (LORD CHALFONT): My Lords, I should like, in beginning these few brief concluding remarks, to thank the noble Viscount, Lord Amory, not
1486
only for opening this short debate but for the restrained and constructive way in which he did so. He will note, I think, that the opinion of every noble Lord who has spoken has to some extent or other supported his point of view; and the fact that this Question has been put by one of such distinction, whose views carry weight far outside this country, may help to bring home to others the views that are so deeply held in this country.
As the noble Lord, Lord Ardwick, has said, it is problematical whether what we say in your Lordships' House will have very much practical effect in this case. But I think it is notable that among those who have spoken to-day we have heard the noble Lord, Lord Thorneycroft, who, like the noble Viscount himself, has had experience in Government since this problem began to come to the surface of our minds. We have heard the noble Lord, Lord Robertson of Oak-ridge, with his unique experience of German affairs, and particularly of Nuremberg. We have heard, also, no fewer than four diplomatists of unrivalled distinction and in some cases with personal experience of this case. So I think we should not despair that perhaps some one will listen to what we have said. I am delighted that the noble Lord, Lord Gore-Booth, with whom I had such a long and happy association in the Foreign Office, agrees with my view that we should not be too pessimistic about the outcome.
Her Majesty's Government are indeed aware that many people in this country outside your Lordships' House feel that the continued detention of Rudolf Hess is not in accordance with the conception which this country has of humanity and compassion. Her Majesty's Government share those feelings and have done so for a long time. We have considered for some time now that the right course would be for Hess to be released, to return to his family. I do not wish to dwell on the arguments about Nuremberg and the trial of Hess and his colleagues: as the noble Lord, Lord Thorneycroft, has said, it would be unproductive to do so. Nor do I feel like dwelling too much on the mental or physical condition of this unfortunate man, if only because he has a wife and son, who will follow with great care the words we use in this House. Like all of us, they have feelings. There-

1487
fore, if I may paraphrase a modern American playwright: no attention must be paid.
I think that the argument is one of simple humanity. And, together with the French and the Americans, we have repeatedly appealed to the Soviet Government for Hess's release on humanitarian grounds. Noble Lords have asked about a new approach. The most recent appeal to the Soviet Government was made at the end of last month by Her Majesty's Ambassador in Moscow, and he made it not only on our behalf but also on behalf of the French and American Governments. I regret to have to say that the Soviet Government have rejected this last appeal, as they have rejected the previous ones, and they rejected it as recently as March 13, the day on which Rudolf Hess was returned to Spandau Prison. I must say that I think it would be fruitless now to engage immediately on any new appeal. It would clearly meet the fate of all previous ones.
The noble Lord, Lord Wade, and other noble Lords mentioned the question of precedents. It is true that other prisoners have been released from Spandau for various reasons, but the operative words were those used by the noble Lord, Lord Wade, "with Soviet consent". I am afraid that those words have to run like a thread through everything we say and think about this problem. Some people have asked, as the noble Lord, Lord Robertson of Oakridge, said, why in these circumstances should not Her Majesty's Government or the French and American Governments take (the law into their own hands and release Hess at an early moment when it is the turn of one of them to be responsible for his physical custody? As the noble Lord said, the answer is quite simply that it would mean breaking a solemn international obligation, and that we could not contemplate.
Apart from the question of international obligations, which we regard as being made to be honoured and not to be broken, the Four Power agreements relating to the detention of Hess at Spandau are part of a whole complex of Four Power agreements (the noble Lord, Lord Inchyra, mentioned this point) relating to Germany and Berlin as a whole; and we simply cannot, whether
1488
we should like to or not, isolate the problem of Hess from the wider questions of Four Power responsibility. I am sure that the House will be particularly conscious of this last consideration at the present moment, when the French, the Americans and ourselves are on the eve of opening talks with the Russians in Berlin about improving the situation in and around the city.
So, without taking back a word of what I said at the outset about Her Majesty's Government's earnest desire to get Hess released as soon as possible, I share the thought which has been expressed several times this afternoon that we should not forget the general and historical perspective. There is also the important fact that as well as the Four Power talks which I have mentioned, Herr Brandt, the Chancellor of the Federal Republic of Germany, to whom we had the pleasure of listening when he address us earlier this month, is now engaged in the historic task, in which he has certainly the full support of Her Majesty's Government and, I should suppose, of your Lordships' House, of improving the Federal Government's relations with her Eastern neighbours and thus hopefully helping to erase some of the tragic effects in Europe which arose from the very period with which Rudolf Hess's name is associated.
Finally, let me say a word about Hess's return to Spandau from the British Military Hospital. The essential consideration here was not a question of a Four Power agreement or of veto. Hess was transferred from prison to the British Military Hospital for the purpose of medical examination and observation, and, by implication, for treatment, if treatment were necessary; and once the stage had been reached when the medical advice was that the hospital treatment was complete and that there was no serious risk, medically speaking, of returning him to the prison, we had no grounds whatsoever for contending that the purpose for which he had been removed to hospital had not been achieved. We could not refuse to agree to his return to prison without exposing ourselves at once to the charge that we were in breach of the agreement with the Soviet Government.
Besides—and I think this is an important matter—it was the unanimous

1489
opinion of the doctors concerned with his case in the hospital that in Spandau, even that grim and gloomy fortress, with some important improvements conditions would be better for Hess as an active convalescent than the Military Hospital, which has physical restrictions and lacks facilities for exercise. So the doctors prescribed certain improvements to both Hess's accommodation and his régime, and, as your Lordships have heard, these have been agreed upon and have all now been put into effect. As the result, Hess now has a larger room with an open door, is able to spend more time in the garden, has an improved diet and is under constant medical supervision. And, if I may allude briefly to what has been said several times in this short debate because it is perhaps not generally realised, visits have always been allowed. The fact is that it was only when Hess went into hospital after more than 25 years in prison that he himself agreed to the visit of his family. Let me make it plain that Her Majesty's Government regard these modest improvements in the condition of this man as palliative only. I can assure your Lordships' House that we will continue to take every appro-
1490
priate opportunity to secure the release of this wretched man.

EXPORT GUARANTEES AND PAYMENTS BILL
The LORD CHANCELLOR acquainted the House that the Bill had been endorsed with the Certificate from the Speaker that the Bill is a Money Bill within the meaning of the Parliament Act 1911.
AUSTRALIA AND NEW ZEALAND BANKING GROUP BILL
  GATESHEAD CORPORATION BILL [H.L.]
  Reported, with Amendments.
FLINTSHIRE COUNTY COUNCIL BILL
  GOSPORT CORPORATION BILL
    LEICESTERSHIRE COUNTY COUNCIL BILL
    Brought from the Commons; read 1a, and referred to the Examiners.