§ 7.33 p.m.
§ Read a third time.
§ Lord Somers
My Lords, it is with great hesitation that I make any complaint about the findings of the committee which considered this Bill, and of course I am not thinking of moving any amendment. But I sincerely hope that whatever is said in the House tonight will be considered by the committee—
§ Lord Denham
My Lords, if the noble Lord will forgive me, there is no Question before the House, because the Third Reading has been accepted. Therefore, I think that my noble friend will have to move that the Bill do now pass. The noble Lord now on the Woolsack will put the Question, and then the noble Lord will be in order in making his speech.
§ The Chairman of Committees
My Lords, I am grateful to the Chief Whip. I move that the Bill do now pass.
§ Moved, That the Bill do now pass.—(The Chairman of Committees.)
§ Lord Somers
My Lords, I go on to say that I have no intention of moving any amendment, but I hope that the committee which deals with the Bill in another place will take note of what is said tonight.
I am dealing principally with Part VI of this Bill, which provides for the virtual confiscation of certain 232 lands which belong by right to the freemen of the City of York. These lands are known as The Strays, and they have been the property of the freemen for centuries. The mere fact that the council hold the freehold of these lands is quite misleading because they hold that freehold merely in trust for the freemen.
Bureaucratic confiscation of this kind is unworthy of any government or council who call themselves democratic. Freemen's rights and property have been defended by successive governments ever since the Reform Bill 1835. Notable examples are the Act of 1935 and the Local Government Act 1972. With your Lordships' permission, I should like to quote Section 248 of that Act. It says:Subject to the following provisions of this section, nothing in this Act shall affect any person's status, or the right of any person to be admitted, as a freeman of a place which is an existing borough; and in this section any such place is referred to as a city or town.It goes on later, in subsection (4), to say:After 31st March 1974—That seems to me to put it pretty definitely. It emphasises Parliament's intention that the freemen's personal rights and property should not be affected or prejudiced in any way. If Part VI was included it would be a dangerous and indeed a fatal precedent, for other city councils would naturally assume that they are free to do the same. The freemen are an admirable institution whose purpose it is to benefit the community in which they live; and to inflict such an insulting deprivation of rights is to my mind inexcusable.
shall have and enjoy the same rights, whether in respect of property or otherwise, as were held and enjoyed on that date by a freeman of that city or town, by a person correspondingly related to or associated with such a freeman or, as the case may be, by a person correspondingly related by marriage to the widow or a child of such a freeman".
- (a) a freeman of a city or town,
- (b) any person who by marriage, descent, employment or otherwise is or has been related to or associated with a freeman of a city or town, and
- (c) any person who is or has been related by marriage to the widow or a child of a freeman of a city or town,
§ 7.38 p.m.
§ Lady Kinloss
My Lords, although I do not live in York, for the past 20 years I have lived in a village 11 miles from the city centre. My husband lectured formerly in its university and is now an honorary fellow. Although the university is on the outskirts of the city it has several properties within it. But my connection goes back nearly 700 years, when my collateral ancestor, William Grenville, was archbishop, after he had sat in this House as Lord Chancellor. I thus have a great fondness for this historic city with its traditions which are so beautifully maintained by different bodies among its citizens.
I have read with great care the parts of the transcript relevant to what I am going to say. I am obliged to say, after reading them and the Bill, that I could not have come to any other conclusions than those of the Select Committee. I only heard of this matter quite by accident a short time ago, long after the Select Committee had met. I did not know that there was considerable local feeling, most especially among the freemen of the city. Nor did I realise the extent to which this is a national issue. During that time matters had been brought to my attention by responsible persons which were not brought properly before the Select Committee, as they ought to have been.
233 This is not an occasion for a Second Reading speech, and I shall not make one. I merely draw your Lordships' attention to certain facts. The freemen fear that the effect of this Bill will be to dispossess them of ancient and lawful entitlements—their present statutory rights. The Bill does not mention the existence of the freemen's statutory rights in and over the Botham, Walgate and Monk Strays. Such rights were awarded by various acts of Parliament between the 17th and 19th centuries. Although much of the Bill concerns freemen, it is a matter of fact that at no stage during its preparation were they consulted. Their first knowledge that such a Bill was contemplated was the statutory notice published on 3rd October 1985 in a local newspaper. As I have already said, there was at no stage local consultation with the freemen. This seems hardly fair. Rightly or wrongly the freemen consider that the Bill has been pushed through by York City Council in a cavalier and high-handed fashion.
There are freemen with rights similar to the rights of the freemen of York in many other cities in the United Kingdom. Parliament has been careful to preserve their rights, most recently by the Local Government Act 1972. Can the Chairman of Committees say whether there has been any change of government policy with regard to the freemen's rights?
I could not help but think of the Queen of Sheba's visit to Solomon. I paraphrase what the Bible says. She said to the king:The report was true. I heard in my own land of your affairs, but I did not believe it until I came and mine own eyes had seen it. Behold the half was not told me".Is that not what has happened to the Select Committee through no possible fault of its own?
§ 7.42 p.m.
§ Baroness Hylton-Foster
My Lords, my reasons for intervening tonight are, first, that my husband was the Member for York and therefore one is always interested in things that happen in that lovely city; and, secondly, that Lord Elliott of Morpeth asked me to say how very distressed he was that he could not be here tonight to take part in this debate. Unfortunately he is tied up with a very long-standing engagement which he could not, with any decency, get out of. He wanted me to draw the attention of your Lordships to the freemen of Newcastle-upon-Tyne who are most active and work closely with the city council in a very independent way. They would take exception to the idea that they are out of date and should be abolished.
Clause 6 of the York City Council Bill is worrying freemen in towns and cities all over the country in case it is the thin end of the wedge and therefore may involve the loss of ancient rights. This Bill is setting a precedent and another Bill has already been prepared. I should also like to ask whether it is right for a local authority to take over a registered charity's rights and land without consultation? I know that compensation was refused. If the York council is to take over the management of the Strays and for a charitable trust should it not be on behalf of the guilds?
Halsbury's Laws of England Volume 5 paragraph 717 states that civil corporations may hold property on special trust for the benefit of the borough freemen. Does this also apply to land?
§ 7.45 p.m.
§ Lord Graham of Edmonton
My Lords, I intervene cautiously and tread warily in this matter. This is one of those occasions when if procedures had allowed me to do so I should very much have liked to listen to the noble Earl who is to follow me. Undoubtedly he is not only in possession of a great many more of the facts than I am, but I am also certain that he can give us the right flavour and atmosphere, although I have not spoken to him this evening on the matter.
I am intrigued by the point made by the noble Lady, Lady Kinloss. As I understand it, what she said was that on reading the report (which is what we are debating), the Bill and the transcripts—here we have them—she could have come to no other conclusion than that to which the Select Committee came. If that is the case that is a mark on the side of support. But then in absolute candour she drew attention to the fact, without the detail, that she had changed her mind as a result of the out-of-court conversations which from her experience, from where she lives and from her friendships she has managed to have. She also made the distressing point to me that she had been made privy to so little information about this matter before the event that the friends who were able to give her advice afterwards had not, in my view, the gumption, knowing her status in the community, to bring to her their concerns, whatever they were, before the event. One has to say that this perhaps is part of the problem.
The only evidence I have is a letter from a body called the Freemen of England. This drew my attention to the matter. I was deputed by my colleagues to sit and listen, and that is what I intended to do. But on page 2 I read:It is true that, during the period after World War II, the Freemen of York were somewhat lax in their control of their lands, and allowed the City to take on certain management responsibilities".I await with interest to learn what the phrase "somewhat lax in their control" means. What is this group of people who have control and who are lax in exercising their control to such an extent that they allowed the city to take on certain management responsibilities?
I confess that I have not read this in detail, but was it confiscation or arrogant assumption on the part of the council? I have experience as a leader of a council. I know Newcastle, the freemen and the relationships. I am frankly puzzled about the ambiance that existed among the freemen of the City of York and the local authority, whatever the changes over the years, which apparently led to such a situation. How can people with centuries' old rights and responsibilities be so lax in their control of those responsibilities that, according to this letter, they allowed the city to take over certain management responsibilities?
I listened carefully to the words of the noble Baroness, Lady Hylton-Foster. I respect her deep knowledge of York, the city and its environs. She used phrases such as "the thin end of the wedge" and "a precedent". I heard the noble Lord, Lord Somers, talk about fears that the same thing would happen elsewhere. If the circumstances exist I can well imagine the same thing happening. But the information I have gleaned from this letter leads me to believe that all was not well with the previous situation.
235 I am never frightened by people who talk about precedents and the thin end of the wedge because I take the view that if there are two exactly comparable situations the precedent may be a good one. I was glad that the noble Lord, Lord Elliott of Morpeth, expressed his concern to the noble Baroness. I cannot believe that a council willingly wants to take away from a group of people a right which they are exercising profitably (I do not mean making money) for the good and the welfare of the people. It is a proper right. The freemen of a town—this ancient tradition and pageantry and rights and responsibilities—are all part of what I hold dear in our local government nexus.
My Lords, I hesitate to interrupt but it is the noble Lord, Lord Somers. I think that the noble Lord has his name wrong.
§ Lord Graham of Edmonton
My Lords, yes, it is the noble Lord, Lord Somers. That is all right. I think the noble Viscount has his name on the record. So far as I am concerned, I await to listen to the noble Earl, Lord Halsbury.
The Earl of Halsbury
My Lords, I shall try to help the House to see this matter in its proper perspective and answer the point that has been made. The committee sat for four days and at the end we were of the unanimous opinion on what our result should be, that the Bill should proceed. I had with me the noble Lord, Lord Airedale, the noble Viscount, Lord Hood, the noble Lords, Lord Jacques and Lord Wise, and we were unanimous about it. We sat on Tuesday, Wednesday, Thursday and the following Monday and we listened to arguments deployed by counsel for the petitioners, and of course by the promoters too.
The history of this matter starts with the Enclosure Acts in the middle of the 18th Century proceedings through to the early 19th Century when the freeholds of certain lands were assigned to the City of York in trust for such freemen as inhabited ancient messuages in the City of York. A messuage is a building and the land that goes round it, outbuildings and so on. The rights involved were grazing rights over the strays; and strays are in Yorkshire what a common is in England. The rights concerned were rights of pasture and the somewhat lesser right of average which is the right of pasture after the first crop of hay has been mown. It does not run the whole way through the year.
The two key points in all this are, first of all, the ravages of time and change are such that the ancient messuages can no longer be identified. No freeman can point to his house and say. "This is an ancient messuage as it was when the awards under the Enclosures Acts were passed". So the beneficiaries of these trusts cannot be identified; and this creates the situation of what is called a redundant trust.
The next thing is that the rights under these trusts are not being exercised. No one in fact is pasturing their beasts on any of these strays any longer. At one point in the proceedings, I turned to counsel for the petitioners and—if I may read a little of the transcript—said:These points of law are being argued before the wrong court. This is not a court of law. This is a committee in the Lords' House 236 of the High Court of Parliament; and what Parliament grants it can rescind. The Bill in respect of Part IV does not alter the status of freemen. It does not remove the rights of freemenThen I went on and said:Can you find a freeman who can come before us and say on oath, 'I am exercising my grazing rights and have been doing so for years past as my father did before me and I am a freeman resident in an ancient messuage in such-and-such a ward'?Of course, nobody could be produced who could say that; so that the rights are not being exercised and the beneficiaries are beneficiaries under redundant trusts because they cannot be identified.
That is the situation which the city fathers of York have to deal with following a number of agreements made between the freemen of the wards starting in 1947 and going through to 1958 for the management of the strays. And they have stray managers, pasture masters and so on. They came to an agreement with the freemen that the council would nominate these pasture masters and the freemen would nominally elect them. The whole thing has been managed by the corporation with respect to different strays of different dates and between 1947, 1948 and 1958, three main strays came under the management of the council which resulted in quite a substantial negative cash flow, taking one year with another. The freemen, whether they lived in ancient messuages or not, had no plans whatsoever to meet this negative cash flow on the management of the strays.
The City of York wants, as it were, to rejuvenate the trusts by dedicating the strays to recreational facilities for the whole citizens of York. This of course has been partly anticipated because one of the strays, the Micklegate Stray, has its own Act of Parliament of 1907. It is under those circumstances that York racecourse was built on the Micklegate Stray. What you have built a racecourse and a grandstand upon is no longer available for grazing rights.
On another of the strays is a golf course; and there have been irregularities in the past which have been connived at and ought to be put straight. There have been encroachments on the strays. People's gardens have encroached but so long ago that the people who now own these gardens and houses bought them in good faith and would not be at all happy at the idea that their gardens must be ploughed up and returned to pastureland in order that the strays can be used as grazing rights for people who no longer graze on them. Some of them are grazed because the council has power to lease out grazing rights to farmers in business in pastoral agriculture, and so on.
This is the situation that we had to face. The City of York is trying to regularise a rather messy legal situation involving all sorts of ambiguous terminology. I hope very much that the House will agree that this Bill should pass because we shall be in a very considerable embarrassment if it does not. Under the 1972 Local Government Act, the City of York has until December of this year to clean up all this rather untidy administration of the past years and so I must assure your Lordships that nothing is being taken away from anybody who can be identified as having a right in it and no right is being abolished that is currently in use.
With that, I hope that I have answered the points made by my noble friend Lord Somers and by my 237 noble friend Lady Kinloss, and I hope that I have satisfied some of the curiosity of the noble Lord, Lord Graham, who spoke from the Front Opposition Bench. I hope that your Lordships will agree that the Bill should pass.
§ The Chairman of Committees
My Lords, we have had an interesting short debate. I have every sympathy with the noble Lord, Lord Graham, in not having been able to hear the noble Earl, Lord Halsbury, before he spoke in this debate. I think that I should like to express my great gratitude to the noble Earl, Lord Halsbury. He was the most competent chairman of this committee and he has told us how very carefully the Select Committee went into all aspects of the case that was put to them by counsel on behalf of the petitioners, and that they decided unanimously that the Bill should not be amended.
It would be most unusual for this House not to agree with a recommendation of this sort from a Select Committee. The whole of our Private Bill procedure follows the course that the House discusses a matter on the Second Reading and remits it to a committee which is far more able to go into all the intricate difficulties behind the particular petition. As the noble Earl has said, this is a complicated matter. The Select Committee had every opportunity of going carefully into it, advised by counsel on both sides, and I really do not think that this House should interfere with the recommendations that they have made. If the freemen wish to pursue their case, then the right place to do so is in the House of Commons where the Bill will proceed once it has passed this House.
§ On Question, Bill passed, and sent to the Commons.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The sitting was suspended from 7.59 to 8.35 p.m.].