Select Committee on London Local Authorities Bill Minutes of Evidence


Evidence Session (Sections 2400-2499)

DAY SIX

21 MARCH 2006

 2400. Again received by the College?

(Mr Hand) Absolutely, yes.

 2401. MISS STADDON: Thank you, no further questions.

 2402. CHAIRMAN: Thank you very much.

The Witness withdrew

 2403. CHAIRMAN: Am I right in thinking you have one further witness to call?

 2404. MR LAURENCE: I will ask Mr Roderick Cordara QC to take the stand please.

MR RODERICK CODARA QC, Sworn

Examined by MR LAURENCE

 2405. MR LAURENCE: Mr Cordara, you are Roderick Cordara, in practice at 24 Lincoln's Inn Fields, London, WC2.

(Mr Cordara) I am.

 2406. You are a barrister and member of Lincoln's Inn?

(Mr Cordara) I am.

 2407. For the last ten years your chambers have been located at the address I have just mentioned?

(Mr Cordara) That is so.

 2408. You now occupy five buildings at 24 to 28 Lincoln's Inn Fields?

(Mr Cordara) Yes.

 2409. You yourself work at 26, located on the north side of Lincoln's Inn Fields at the address given and you tell the Committee that your room in Chambers is on first floor front, and indeed the Committee have visited it. Is that the position?

(Mr Cordara) That is right and I am sorry I was not there to welcome you.

 2410. They will therefore have noticed that it has a fine view over the Fields, a view you enjoy when you are working and when you have leisure to lift your eye from the page as it were?

(Mr Cordara) Indeed, that is right!

 2411. Tell the Committee what your connection is with the area, Mr Cordara?

(Mr Cordara) I grew up in the area. I had a Holburn and Bloomsbury childhood. I was educated largely in the area and because of the career I have chosen I have remained in the area all my life so I have been making use of Lincoln's Inn Fields (together with the other squares but principally Lincoln's Inn Fields) for all my life.

 2412. I think you have been a councillor of Camden Council at one time, have you not?

(Mr Cordara) That is so. In the 1970s I was a member of the Council.

 2413. You know something about all the Bloomsbury squares, do you, having grown up in the area?

(Mr Cordara) I have had experience of all of them one way or another and as I point out in the proof, I think that while they are all in their own different ways delightful, Lincoln's Inn Fields are from my point of view the most attractive because they have a combination of large size with a relatively tranquil location. Russell Square is obviously an extremely large and splendid square but it is constantly encircled by the noise of traffic. Bedford Square is delightful as is Mecklenburg but they are private and there are one or two others, Queen's Square and Tavistock, which are either small or surrounded by traffic. Queen's Square is, I think, the closest in feel to Lincoln's Inn. It is quite a small square, but it does have a tranquil location. Lincoln's Inn Fields has the benefit of a relatively tranquil location and it is of large size.

 2414. Looking at paragraph 7 of your proof at the bottom of page 2, I think you may have made one or two of these points already, but is there anything else about the particular ambiance and flavour of the square that you want to draw attention to?

(Mr Cordara) I find that its division into four quadrants is virtually unique among the squares. Russell Square has perhaps a more traditional English garden design of curving paths and so on with no obvious focal point whereas Lincoln's Inn, divided as it is into the four quadrants, has from my point of view two qualities which perhaps make it distinct. One is that each of the quadrants has a distinct personality, albeit one of them is given up to the tennis court and the café. Technically one is far more focused both visually and indeed as one uses the fields towards the centre, and therefore I am sensitive to anything that will interfere with the functioning of the centre both from a visual focus and indeed a physical focus.

 2415. Tell the Committee something about the fortunes of Lincoln's Inn Fields as you have yourself perceived them over the years?

(Mr Cordara) The Committee obviously will be well aware of the problems that occurred in the 1980s and 1990s with the vagrancy, but that was just the end of a process of decline which I think probably began in the 1970s. As a child I remember the square was extremely well staffed. There was a gardener's house which has later disappeared. There was a café of the old school where ladies of a certain age filled multiple cups of tea rapidly and you could buy them while you watched the tennis and so on. It was an old-fashioned garden square café. There was a long period of decline obviously, of which I suspect the Committee will be well aware, but over the last decade - and I can date it fairly accurately because my chambers moved from the Temple when we decided we had to move from 17th century accommodation in the Temple to 18th century accommodation in Lincoln's Inn Fields - since then with at arrival of the railings I have seen the square really come back to the level of care and the level of use that I remember from the times before the decline, and I think at the moment it is in a fairly good state. It is attractive, and it is well used, and it provides, I think, as much pleasure as I remember it ever providing.

 2416. Mr Cordara, you deal with two aspects of the impact on page 4 of your proof, what you call the visual and the aural impact. We have heard a good deal of evidence I think this morning about the potential noise nuisance created by events in the square. The first topic you deal with however is what you regard as the visual impact?

(Mr Cordara) Indeed, it is a point I have already made which is because of this rather orderly design, the eye is drawn towards the centre and indeed the way one walks through it gives you a choice effectively of you either walk around the perimeter looking through to the centre obviously as you pass the avenues to the centre or you walk through the centre. So it is a highly focused layout and that is something that strikes me as unique given the breadth the rather attractive - psychologically speaking - aspects of the gardens from that point of view.

 2417. Just a word about the other impact you deal with in paragraphs 4 to 17?

(Mr Cordara) I can simply say to the Committee that I recall probably two or possibly three years ago being in my room - and I am not any longer, I am happy to say, a late worker so it would not have been later than nine o'clock - hearing what I have described as the "dull thud, thud" of the base, the sound of disco music coming out of what must have been at that point a marquee in the middle of the square. And the associated piece of evidence is that I do recall noting the relatively early hour at which party goers, at least on one occasion, had arrived. It was something that I made note of not knowing that I would ever be here so it must have been something that struck me quite forcibly, people in black tie, around seven o'clock arriving for a do. Perhaps I have an assumption that one generally arrives at eight o'clock and I have indicated in the proof that, thinking about it, it may well be that the clientele at which these large functions are aimed obviously have to get their trains and given the tyranny of the absence of late night trains in London perhaps the function has to end relatively early so therefore, so that people have a good evening, it had to start somewhat earlier than other functions might usually start.

 2418. What is the conclusion that you from your particular stand-point would want to offer the Committee?

(Mr Cordara) I think that the Fields are back to a reasonable and good standard of maintenance and therefore can be used to the same level or to as a high a level as I have ever seen them used over the 50 years with which I have one way or another been acquainted with them. I am cautious about anything that will potentially upset what is a fairly delicate balance. As it is with any garden, quite small changes can have a big impact for good or ill, and unless there is a very clear prize in terms of some objective which will truly enhance the experience, I myself would favour caution before one did anything to alter what at the moment is a relatively well functioning open space.

 2419. MR LAURENCE: Thank you, Mr Cordara.

 2420. MR CLARKSON: I hope Mr Cordara will forgive me if I do not ask him any questions at all, but the usual conditions apply.

 2421. CHAIRMAN: Thank you, Mr Clarkson. Does the Committee have any questions? I cannot ask you to re-examine then, Mr Laurence.

The Witness withdrew

 2422. MR LAURENCE: That is the case for the petitioners for whom I act, with Miss Staddon, of course. What I would prefer to do is to allow the other petitioners to have their say. I believe that is likely to be able to be done fairly quickly from indications that I have heard elsewhere and then hopefully we will be able to fit in time for closing speeches this afternoon.

 2423. MR CLARKSON: If I could just make one point that I have told Mr Laurence about; it is a convenient moment. Can I ask you to take up clause 112 as put forward yesterday with the amendments on it. There is just one point on it that I should tidy up, if I may.

 2424. CHAIRMAN: Would you give us a moment, Mr Clarkson, just to find our copies.

 2425. MR CLARKSON: It is on page 2, clause 112(7), "total area, including the area on which any temporary structure is erected which may be set apart, et cetera. I had better read that out. "or enclosed under subsection (1) above during the period mentioned in subsection 6 A and B above shall not exceed 2,000 square metres." You will recall that there is a proposal to have an access at point D. I trust there is a plan in due course we can hand in or should hand in.

 2426. CHAIRMAN: Should we be looking at the plan that shows the pink area in the middle?

 2427. MR CLARKSON: We can hand out the plan now. (Same handed round) Have you been given a plan with D on it? It will not teach you much. It just give a D at the eastern end of the pink. The intention is not to include within the 2,000 square metres the area east of D which is to be preserved for access. So the simple point is this: I would seek extra words just after the word 'erected' in sub-clause (7) words in this form: "but excluding the part of the footpath marked D on the signed plan which is outside the pink area". I repeat: "but excluding the part of the footpath marked D on the signed plan which is outside the pink area". Thank you.

 2428. CHAIRMAN: Thank you, Mr Clarkson. Right, in which case we should proceed to hear Mr Robbins. Is that correct?

 2429. MR ROBBINS: I did have a witness but I have stood her down. You have seen a lot of evidence here and I did not think it was necessary to hear her. Mine is in the form of a closing statement or address. It is my intention to be brief because I am anxious not to overlay the closing address which Mr Laurence will have in due course, and in addition I think brevity is a quality which may commend itself to this Committee.

 2430. Although in this process there appear to have been no direct negotiations between the parties, the Promoters have made further concessions and further statutory limitations within the proposed clause. But have they gone far enough? Has the case been made by the Promoters? We have an acre of paper but has the case been made? I think the Committee may have been tempted at times to consider that the promotion of a minor intrusion into Lincoln's Inn Fields could be justified in order to raise funds for the improvement of the gardens. The question is should the Committee give way to that temptation? I do not believe that it should for the following reasons.

 2431. Firstly, the major motive for the proposal is one of finance. The big question here is has the Committee been presented with all the financial facts relating to the funding of the maintenance and improvements of Lincoln's Inn Fields? I feel the answer must be no. Mr Stanton has produced some additional figures over the weekend (which incidentally have not been supplied to me) but they seem to add a certain confusion to the picture rather than any further clarity. Surely to pursue this clause Camden should have as part of the process given the Committee a fully supported set of accounts for Lincoln's Inn Fields with budgets for the current year for maintenance and a properly costed capital expenditure plan?

 2432. If we look at it, should they not also have shown us in some generality and detail how Camden parks and Lincoln's Inn Fields in particular can be and are funded? They have not done this. If we look at the Green Spaces: Better Places document, which you have looked at before, we find no references to this type of funding. There are however many references to other types of funding which have not been considered in detail and have not been put in as evidence by the Promoters. There is a reference to Lottery funding, there is a reference to section 106 funding, there is a reference to Landfill Tax Credits, there is a reference to the making of partnerships with local organisations (all specifically grant-making organisations), there is a reference to a possible Neighbourhood Renewal Fund, and the possibility of a successor scheme to the Countryside Stewardship scheme which would include urban parks. We have even heard of business improvement zones but I am not sure we are very clear as to what they are.

 2433. Where is the evidence that the funding by holding private parties in a public park is approved of by central Government or indeed by the London Borough of Camden? Camden's financial evidence initially did not even include the rent of the new restaurant which when it goes up to £42,000 per annum is quite a large contribution towards the funds that they necessarily require. In the latest Open Space Strategy document, which was prepared by Camden last year, which we have not had the whole thing in evidence, there is a clear reference in that document to the development of activities for local businesses centred around the new restaurant facility and indeed the bandstand. Where and how has this transformed itself since last year into the production of large-scale private parties which clearly were not either focused for local business or indeed for community purposes? Surely the "man on the Clapham omnibus" would not have objected to temporary structures erected in connection with community events or activities which were truly ancillary to the use of Lincoln's Inn Fields as a garden? But would he not have reacted against the use of a public park for private functions? Does the end justify the means?

 2434. Thirdly, we have had a lot discussion here about the question of consultation. I appreciate that this can be difficult but it is now a very important and normal part of local authority life. When LIFA died or was in the process of dying, why has Camden, particularly in view of the substantial opposition to the new section, not already sought to pursue further consultation with the frontages or indeed other users of Lincoln's Inn Fields? We know that all the frontages are interested in the future of the Fields. We also know that there are many local organisations, associations and community groups, including the Covent Garden Community Association so ably represented here, which could have been and should have been consulted on the proposals. Again, has the case been made out? We managed to extract from Camden at least the research it carried out prior to the preparation of the 1998 Management Plan but do we have any current research? No. Did we have an up-to-date Management Plan for Lincoln's Inn Fields? No. Has the case been made out based on consultation or local enquiries? No.

 2435. Very briefly on planning issues, it is clear that there could be some difficulty in obtaining planning permission for the event structures. The reduction of the event period to 28 days appears to have been an attempt to circumvent those planning issues. Where is the evidence from the planning officer from Camden? Where is the environmental impact assessment for these events? Should this law apparently approve and authorise a use of a square which the planners might strongly disapprove of? Is this why they are not here? What about building regulations? Has the case been made? No. Camden made a great point that their contract would control events, but would it? The Committee may like to look at the very comprehensive terms and conditions which we were given this morning for the hire of Battersea Park. Camden's contract is a pale imitation of what they have achieved there. Has the case for control been made out?

 2436. I am not intending to review all the legal protections which have been imposed by Parliament over the years to protect this open space; that can be done elsewhere. Suffice it to say that this Committee should not take lightly the breach of that protection or indeed create a precedent for the breaching of that protection. You will have noted that before the 1931 Act there was a full Royal Commission on the subject of London squares which resulted in a clear decision that Lincoln's Inn Fields should be preserved as an ornamental garden or ground for play, rest and recreation. The current proposal is not backed up by a Royal Commission. It is not backed up by a Government report. It is not backed up by a properly researched strategy document or planning document from Camden. Even the Mayor of London has not issued any diktat that would suggest that the idea of using public parks for private parties is an acceptable or a good way of raising funds for parks.

 2437. Has the case been made by Camden? No. Although the Committee have not seen Lincoln's Inn Fields in full use in the warmer months you have heard from some interesting witnesses from the local community from which I trust it will be appreciated that this is a park which is used to a large extent by residents in the area. Indeed, it is one place where residents do meet on a regular basis and it has been described to me very specifically as a community space and a community area rather than just a place where businessmen have their sandwiches. It is far ahead of the other squares, as we have heard from the last witness, added to which you will appreciate that it is used by many students, builders in the area, tourists and all sorts of other people. The section further amended has of course reduced the impact upon the users of Lincoln's Inn Fields but even within those limitations there are still 60 days when the users` enjoyment of Lincoln's Inn Fields will be or could be compromised to some degree by the proposed events.

 2438. I am instructed by the Open Spaces Society which, as the Committee might know, is the oldest national environment conservation body, founded in 1865. Indeed, one of its founding fathers, Sir Roderick Hunter, was very involved in the protection of Lincoln's Inn Fields in the last century and indeed when the 1894 Act was prepared. The Society's main concern is the protection from encroachment and the attainment of maximum public enjoyment from commons and other open spaces. Although the Society's main concern is countryside issues, they are also very concerned to protect precious and dwindling open spaces within our cities. It is perhaps difficult for us with gardens to realise that if one lives in a flat in Convent Garden, Lincoln's Inn Fields is a hugely important issue to life. These are not residents who have second homes in the countryside. Any intrusion into individuals' use of this space reduces its ability to provide that important green lung for those city dwellers. Lincoln's Inn Fields has been protected by statute over many years and I feel that the Committee would have to be very brave to initiate its demise.

 2439. These remarks are all underlined by the other petitioner for whom I act, the Camden Civic Society. That is an organisation which was set up in 1978 to protect the Camden environment and one of its aim is the retention and improvement of recreation areas, public gardens and other assets for public enjoyment. Thus for these reasons, I do not think the case has been made out for this new section.

 2440. I have just been handed by your Clerk something which I am sure you will give consideration to, which is the human rights issues that arise from this section. I just thought I would quote from a clause in that which basically says that "we have not seen the justification relied on by the promoters of the Bill for interfering with the peaceful enjoyment of the possession of the beneficiaries of the statutory restrictions. This and any evidence in support of it will be presented to the Committee considering the Bill …" So the question again is has Camden made out the case for that balance to be adjusted and potentially for those human rights to be taken away? Thank you.

 2441. CHAIRMAN: Thank you. Does the Committee have any questions for Mr Robbins?

 2442. BARONESS O'CAITHAIN: It would be most useful to have a copy of that statement. Is that possible?

 2443. MR ROBBINS: I can get it by tomorrow.

 2444. CHAIRMAN: We will in due course have a copy of everything Mr Robbins has said. Thank you very much, Mr Robbins. We expect to hear from Mr Kelsall now; is that right?

 2445. MR KELSALL: My name is Frank Kelsall. I am the Chairman of the London Society. We have petitioned against the Bill. I have not brought a written statement or produced a proof of evidence. I think the best thing is to read the first paragraph from our promotional leaflet of which I have brought copies. The Society was founded in 1912. We have been active since then and have encouraged excellence in the planning and development of London and in preserving and stimulating appreciation of its amenities and the best of its buildings. The objects of the society are summarised in its motto which enjoins members "to guard the venerable, to strive for the beautiful, and to take thought for the future". I do not want to add to the amount of paper which I know you have had. I am afraid I have not been able to be here before but I have been reading the transcripts with interest.

 2446. There are really only two points which I would like to make on behalf of the Society. First of all we are not just dealing with any London square; we are dealing with Lincoln's Inn Fields. For reasons of its antiquity, the way it was developed and its size, Lincoln's Inn Fields is a very special place and it is special to a very large number of people.

 2447. The second thing is that Lincoln's Inn Fields has an almost iconic status as a sense of public open space. Many London squares are for the benefit of private residents and have remained so; London Squares Open Day shows, which I am sure you have heard about, attracts many people to London squares which to most members of the public are seen as private spaces and it is a privilege to go in there. For a very long time, enshrined in the Act of Parliament which is being attacked by the present proposals, is this sense that Lincoln's Inn Fields is a public space. To members of my Society that is what we feel most strongly about - that is the sense that Lincoln's Inn Fields is a public space which is being attacked. I heard Mr Cordara with interest. I walk through Lincoln's Inn Fields regularly because it is on my regular route to where I work two days a week in Blackfriars from Bloomsbury. It is not that people go there only for recreation; it is actually part of an extremely attractive route. I can give personal evidence to the fact that I use it regularly; I think the sense of Lincoln's Inn Fields as a public open space is extremely important.

 2448. CHAIRMAN: Is that all you have to say?

 2449. MR KELSALL: That is all I have to say.

 2450. CHAIRMAN: Are there any questions from the Committee? Well, thank you very much indeed. I think we have reached the point where closing statements are forthcoming.

 2451. MR LAURENCE: Thank you. I am very tempted, having heard those two addresses, simply to say that I agree and have nothing to add. I mean that in a very real sense because, with respect to both speakers, they have admirably summed up the issues which face this Committee. Nevertheless, with your permission, I will spend a little bit of time with one or two particular matters of detail, if I may. The bundle, which you may want to have to hand in the course of what I am about to say is the green bundle, ICM 5, which is our bundle of statutes and authorities on behalf of the string of petitioners mentioned there. I will also ask, at this stage, for a document to be circulated which I intend to incorporate as part of my submissions prepared by Winckworth Sherwood and headed London Local Authorities Bill, note on repeal and amended of protective provisions. (Same handed). I hope there is nothing controversial in this, and, as I say, it is my intention to refer to it as part of my closing submissions rather than it being a document which is to be relied on as evidence at this stage.

 2452. Chairman, before turning to that document, or any of the documents in the green file, may I begin by saying this that the London Borough of Camden is trying, by this clause, to obtain parliamentary endorsement of a principle which is, as far as I know, unprecedented. Lincoln's Inn Fields has a very special protection accorded to it as a result of the 1894 Act and before coming to that protection itself, my submission is that what Camden is trying to do by this clause is to invite Parliament to endorse the idea that you can interfere with a statutory right of public access to an open space in order to hold private events to raise money.

 2453. There are two aspects to what it is that Camden is trying to do which, in my respectful submission, are extremely controversial. The first is inevitably the public right of access has to be interfered with in order for these private events to take place and the second is that Camden is, by clause 112, seeking to interfere with particular protections for named bodies and individuals identified in the 1894 Act. Can I ask you to remind yourselves, by looking at the green file, and the terms of the 1894 Act, how those two matters are encapsulated in section 45.

 2454. CHAIRMAN: Could you give us a tab reference, please?

 2455. MR LAURENCE: Tab one

 2456. CHAIRMAN: Thank you.

 2457. MR LAURENCE: The history that led up to the enactment of the provision is set out in very considerable detail in the recitals starting on page two and continuing for the next three or four pages. I will not take time with that now. I invite you to turn to section 45 and to note, first of all, how it is that the Act confers and confirms this right of public access, it is in subsection two which as amended reads, "The Council shall subject to the provisions hereinafter contained hold the said Garden and every part thereof as a Public Garden and shall lay out preserve and maintain the same and every part thereof for that purpose and shall keep the same properly railed and fenced." In subsection ten, two pages further on, after reference to noisy games and so on and so forth, towards the end, " … and the whole enclosure shall be used and properly maintained as a Garden and for no other purpose." Reading those two provisions together, one can see that, and it is particularly in subsection two that one can see it, this Act is doing something which until then was not a right that the public enjoyed, what it was doing was conferring on the public the right to have access to Lincoln's Inn Fields as a public garden.

 2458. The second principal matter which was established by the Act, if you turn over the page to page 33 in the top right hand corner, you will see at line 18, subsection 6, I will read it for the context, "From and after the date of transfer all the powers conferred on the Trustees by the said Act of the eighth year of King George the Second Chapter twenty-six shall be transferred to and vest in and may be exercised by the Council except that the powers of the Trustees under the said Act to raise levy and collect the rates and duties authorised to be assessed and levied under that Act shall cease and the expenses of maintaining managing and preserving the said Garden shall be paid by the Council" and then it goes on, "For the protection of the Owners Lessees and Occupiers of the houses in Lincoln's Inn Fields and of the Society of Lincoln's Inn respectively the following provisions shall have effect (that is to say)". Firstly, the protection is for those who are owners, lessees and occupiers of the houses in Lincoln's Inn Fields, and secondly, for the protection of the Society of Lincoln's Inn.

 2459. You can see that from subsection ten, if you read and turn over the page, I will just read that from the beginning, if I may, for the particular point I want to mention, "No noisy games of any kind nor exhibition or shows or dancing nor any public or other meetings shall be allowed in the Garden or other use made of the Gardens which shall tend to the annoyance of the Society of Lincoln's Inn or its members or the inhabitants of houses ...", et cetera. The reality is that giving the clause a sensible construction, the protective provisions are being provided for not merely the owners, lessees and occupiers of houses in Lincoln's Inn Fields, but also for the protection of the Society of Lincoln's Inn and its members. The view was taken rightly, I would respectfully suggest, by the Promoters in putting forward the original version of this clause and then in seeking to amend it later that it was necessary for there to be repeals notices given, amongst others, to Lincoln's Inn and the Royal College of Surgeons in recognition of the fact that those bodies qualified for those notices to be given to them pursuant to the relevant standing orders of Parliament. It is in that connection that I will invite you to look at the note that is being prepared on the repeal and amendment of protective provisions. I will read the relevant bits of it, if I may, and adopt them as my submissions. "…the safeguards contained in subsections 7-10 and 12, section 45 of the London County Council (Improvements) Act 1894 are what are known as protective provisions. Such provisions take various forms and are extremely common in private legislation of all kinds enacted from the 19th century to the present day. (2) It is well established that protective provisions confer private rights on those who enjoy the protection, this is acknowledged by the standing order of Parliament. Standing Order 19 of both Houses of Parliament requires the Promoters of a private bill to give notice of any proposal to alter or repeal protective provisions. Accordingly, the Promoters of the London Local Authorities Bill have served Standing Order 19 notices in respect both of clause 12 in the Bill as deposited and of the additional provision on the Society of Lincoln's Inn and others".

 2460. If you turn to page three of this bundle, the pagination is in the bottom middle, you will see an extract from standing orders, Standing Order 19, the relevant words of which are "On or before 11 December in the case of a bill whereby any express statutory provision then in force for - (a) the protection of the owner, lessee, or occupier of any specifically designated property", and then it goes on to "(b) is proposed to be altered or repealed, notice in writing of the proposal should be given to the person or each of the persons for the time being entitled to enforce such statutory provision, unless after reasonable inquiry the identity of any such persons cannot be ascertained". Then we go on, in three, a private act has been called a Parliamentary bargain, protected provisions in private legislation are seen as analogous to a contract between the Promoter and those who benefit from the protection. Such provisions in many cases are included in private legislation by agreement between the Promoters and those effected by the legislation.

 2461. Then, we invite your attention to two passages from Craies, on Statute Law at Annex B and Maxwell on the Interpretation of Statutes, the tenth edition 1953 which is at Annex C, we invite your attention to those for the purposes of making good the point that you do not tamper lightly with a bargain of the kind that was entered into in 1894 with the passage of the 1894 Act.

 2462. Annex B on page four of the bundle on the bottom middle, you see the side line passage and I will pick it up a line or two before the side lining, "It may fairly be contended that, in view of the Standing Orders, the recitals of the preamble of a private Act should be treated by the Courts as conclusive as between the parties to the Parliamentary bargain contained in the Bill and as to the public utility of passing the Bill, inasmuch as they are not adopted without examination of witnesses, and in many cases after prolonged opposition and argument, before a select committee". Then over the page on 535 in the middle of the page just after footnote M, "If the language of the private Act is at all ambiguous ..." and it is not in this case, "...Every presumption said Best, C.J., in Scales v Pickering 'is to be made against the company and in favour of private property, for if such is a construction were not adopted, Acts would be framed ambiguously in order to lull parties into security'. For it is to be observed as Tindal, C.J., said in Parker V Great Western Ry 'that the language of these Acts of Parliament is to be treated as the language of the Promoters of them. They ask the Legislature to confer great privileges upon them, and profess to give the public certain advantages in return. Therefore Acts passed under such circumstances should be construed strictly against the parties obtaining them, but liberally in favour of the public'."

 2463. Then, if you turn on to two other very brief extracts from Maxwell, Annex C on page eight under the heading, Special Clauses in Private or Local Acts, "It may be added that in construing Acts of a private or local character, such as Railway Acts, the courts do not shut their eyes to the fact that special clauses, frequently found embodied in them, are in effect private arrangements between the promoters and particular persons and are not inserted by the legislature as part of the general scheme of legislation, but are simply introduced at the request of the parties concerned."

 2464. Over the page, on page nine under the heading of Private Acts, taking it up four or five lines from the beginning of that passage, "Any person whose property is interfered with has a right to require that those who interfere shall comply with the letter of the enactment so far as it makes provision on his behalf (z). To deprive him, by a private Act, of the right to do what he was doing for reward at the passing of the Act requires clear and unequivocal words in the private Act (a). The courts take notice that the statutory powers are obtained on the petitions framed by their promoters and, in construing them, regard them, as they are in effect, as contracts (b) between those persons, or those whom they represent, and the legislature on behalf of the public and for the public good".

 2465. About half way down on page ten, "The benefit of the doubt is to be given to those who might be prejudiced by the exercise of the powers which the enactment grants and against those who claim to exercise them".

 2466. My Lord Chairman, the point is this. The bargain that was reached in 1894 was a bargain which amongst other things resulted in the Trustees of Lincoln's Inn Fields, as to be distinguished from the benchers of Lincoln's Inn, giving up their private rights over the Fields in exchange for a payment of £12,000 and in exchange also for the Fields henceforth becoming public. As part of the bargain, the particular protections were also conferred. They took two forms: one, that the Fields would be maintained hereafter by London County Council, who are Camden's predecessors, and, two, the particular protections that are set out - I am now picking up my green file again - in sub-sections (7) and following of section 45. Tab one, sub-section (6) is introduced by these words: "For the protection of the Owners lessees and Occupiers of the houses in Lincoln's Inns Fields and of the Society of Lincoln's Inn respectively, the following provisions shall have effect (That is to say): (7) "No buildings shall be erected or maintained in any part of the garden other than the buildings now existing thereon or such other buildings of a similar character as may be requisite in connection with the convenient use of the maintenance of the garden as by this Act directed. No marquee or tent shall be erected in any part of the garden.

 2467. (8): "No building shall be erected within 350 feet of the west side of the wall and gateway of the Society of Lincoln's Inn between Great Turnstile and Serle Street or within 100 feet of the outer railings round the garden, except buildings on the same site and the same elevation and character in replacement of buildings now existing within the same limits.

 2468. (9): "No band or any other music shall be permitted to play in the garden before 6.00 pm on Mondays, Tuesdays, Wednesdays, Thursdays or Fridays and before 3.00 pm on Saturdays or before 1.00 pm on Sundays.

 2469. (10): "No noisy games of any kind or any exhibition or shows or dancing". That, of course, I have read already.

 2470. LORD TORDOFF: I wonder how we construe these words at the bottom of page 33 and the top of page 34 when it says: "Within 100 feet of the outer railing around the garden...". Were there railings around the garden originally before the new railings were put up there?

 2471. MR LAURENCE: The outer railings would have been those which would have been on the site at that time. In his evidence to you today, Colonel Hills was indicating on the plan that he provided the point from which, in his judgment, the 100 feet fell to be computed for the purposes of giving effect to that provision. I do not know if you want to turn it up but it is a plan towards the end of his exhibits where he put various 100 foot measurements in. I think he made the assumption, which I respectfully suggest he was entitled to make, that the railings that are the outer railings today are in the same position as they would have been then.

 2472. CHAIRMAN: May I ask you one question since we have stopped you. In relation to the 1894 Act, it itself relates to the George II Act, is that correct?

 2473. MR LAURENCE: It supersedes the Act.

 2474. CHAIRMAN: Indeed, but it takes it as its starting point, as it were?

 2475. MR LAURENCE: Yes. It is one of the Acts which is referred to in the preamble.

 2476. CHAIRMAN: I wanted to ask you about this question of benefit which passes from one party to another in relation to the transfer of ownership of Lincoln's Inn Fields. The benefit that passed to London County Council, was it of the space becoming public space, it having previously been private space?

 2477. MR LAURENCE: Yes.

 2478. CHAIRMAN: Was it private space in absolute terms, for example, there was no access to it for the public, or was it simply private space in the notional sense that it was owned privately although there was public access?

 2479. MR LAURENCE: My understanding of the basis for this is principally the statement by English Heritage, in the material that they put forward, that there was a long period up to 1894 when the totality of the square was private. That was private in the sense of there being no public access and, therefore, what the 1894 Act did was to accord a statutory right of public access which until that time had not existed.

 2480. CHAIRMAN: That was actively sought by London County Council at the time?

 2481. MR LAURENCE: Presumably.

 2482. CHAIRMAN: You would have to presume so?

 2483. MR LAURENCE: One does not know the full details because when I come to the end of the reading out of the note that I am on at the moment you will see that although the 1894 Act was, I think, a private Act in respect of which petitions could have been and perhaps were lodged, what frequently happens is that the parties reach an accommodation before they trouble the Opposed Bill Committee and it seems that is what has happened in this case. Can I read on. Skipping the remainder of paragraph 3 and going to paragraph 4. In the case of the 1894 Act it appears that section 45 eventually became law in the form agreed between the London County Council and the Trustees of Lincoln's Inn, who petitioned against the Bill, but subsequently withdraw their petition. The petition itself does not appear to be in the House of Lords` records but the attached extract records the arrangements agreed between the London County Council and the Trustees of Lincoln's Inn Field.

 2484. If you look at annex E, on page 13 of the bundle. This is headed Extracts transcribed from the House of Commons Proceedings on the London County Council (Improvements) Bill held in the House of Lords Record Office. Group C: Proceedings on the London County Council (Improvements) Bill, April 17, 1894. Then Mr Coddington was apparently in the Chair. Mr Worsley Taylor QC and the Hon Alfred Lyttelton appeared as Counsel for the Promoters. Messrs Dyson & Co appeared as Agents. The following petitions against the Bill were read :

 2485. The Petition of the Vestry of St Mary, Islington: No appearance.

 2486. The petition of the Trustees of Proprietors, and Inhabitants of houses in Lincoln's Inn Fields: various people appeared as Counsel and Agents. The proceedings were adjourned. Taking it quickly, if I may, over the page. Proceedings on 4 May 1884, that is an obvious error for 1894. The Chairman says: "We are now prepared to take London County Council (Improvements) Bill. Mr Squarey said: "I appear, Sir, in opposition to that Bill for the New River Company". Mr Cripps said: "If you would like, Sir, to proceed with this Bill without waiting for learned Counsel, it is a very simple matter and I shall be able to explain it to you very shortly". Then Mr Cripps continued: "The Bill before you, Sir, is a Bill under the title of the London County Council (Improvements) Bill, and it deals with various objects, but there are two of importance. One part of the Bill relates to the acquisition by the London County Council of the garden in Lincoln's Inn Fields. That is a matter which has led to a great deal of discussion for some years past, but I am glad to say the London County Council have arrived at a satisfactory arrangement with regard to this matter with the parties interested in Lincoln's Inn, and there is no opposition here today to that part of the Bill".

 2487. The Committee has the transcript of the evidence of Mr Bassett Hopkins over the page, who was examined by Mr Cripps, who amongst other things is asked this question: "I will not ask you any question of detail about the matter because it has been discussed several times before, but speaking generally, are the facts recited in the preamble of the Bill with respect to Lincoln's Inn fields correct?". The answer was: "Yes" He was questioned: "You are aware, I believe, of the arrangement which has been arrived at between the County Council and the Trustees of Lincoln's Inn Field, under which, in consideration of the payment of £12,000 the Trustees have agreed to allow the London County Council to take over the garden of Lincoln's Inn Fields and preserve and maintain it in future amongst the open spaces of London?". The answer was: "That is so". The next question: "That, on behalf of the Council you submit to the Committee as an object which it is desirable to give effect to?" The answer was: "Yes". The witness withdrew and the Committee found that the preamble of the Bill was proved.

 2488. It would seem, therefore, that those concerned, who would have included the Honourable Society of Lincoln's Inn as well as the Trustees of Lincoln's Inn Fields, were satisfied by the bargain which was reached in 1894. I do not pretend that our research on this is as detailed as it might have been, but the result was the Act that you see before you. You are entitled to assume that the bargain that was thus reached was one which all the parties subscribed to and which from that time onwards, as we would submit to you, would need very good reason indeed if you intended to override.

 2489. I will finish paragraph 5 and 6 of the note that I am reading from: "Protective provisions normally commence by reciting that they shall have effect unless otherwise agreed between the Promoters of the legislation and the protected party. This formula is seen as preventing third parties from acquiring any rights under the protective provisions. Words providing for variation however do not appear in the proviso to sub-section (6) of section 45 of the 1894 Act. It therefore seems that sub-sections (7) to (10) are of a hybrid nature in that they both confer private rights on the Society of Lincoln's Inn and others and also give rise to the public trusts (equivalent to those of the Open Spaces Act 1996( upon which the garden in Lincoln's Inn is held by the London Borough of Camden".

 2490. We say that it would be significant that the 1894 protective provisions impose a specific ban on the sort of activities, erection of buildings, music, noisy games, exhibitions, shows, dancing and meetings which would take place if clause 112 becomes law. The enactment of clause 112, even with the amendments now offered by Camden, thus would override the bargain which it seems was struck on the promotion of the Bill for the 1894 Act?

 2491. I would invite the Committee to go back for a moment to the section itself. Sub-section (8) prohibits buildings being erected within 350 feet of the west side of the wall and gateway of the Society of Lincoln's Inn. It is a matter of construction whether that prohibition on the erection of buildings would include, as I would suggest it does include, substantial structures of the kind that we are referring to here. The Committee does not have to resolve that question of construction, it is enough to say that the argument the other way would to be to the effect that as in sub-section (7) there is a reference to buildings separately from marquees or tents that in sub-section (8) what is being referred to is permanent buildings of a sort different from even the very large structure which has been erected over the last few years.

 2492. What is undoubtedly the case is that sub-section (7) would have to be overridden if the activities for which clause 112 provides are to carry on in the future because that clause expressly contemplates that structures will be erected in the Inn. The closing words of sub-section (7) prevent marquees or tents from being erected in any part of the garden. That is why when the clause was originally proposed by Camden it was on sub-section (7) that the repeals notice focused.

 2493. My Lord Chairman, as you know, we subsequently wrote a series of detailed letters, which are in the correspondence bundle and which I will not take time referring to now. In that we pointed out that there was an inconsistency between purporting to repeal sub-section (7) and leaving intact amongst other things sub-sections (2) and (10). It is fair, I think, to say - I intend to be fair if I can be - that the submissions that we made were simply accepted and the result was the promotion of an additional provision not merely to sweep away the protection conferred by sub-section 7, but to the extent necessary to sweep away any and all of the protections conferred by section 45 which might get in the way of what Camden was seeking to do.

 2494. May I make as a point about that way of dealing with the matter. We would have thought it was a legitimate inference from the way in which the clause was originally drafted that the Promoter took the view that there was only one thing standing in their way which they thought on balance they could properly try to persuade Parliament to regard as not sufficiently important to uphold. What we were hoping - I make no bones about saying this - when we drew to their attention the respects in which there were other protections in our favour that would remain, that would render their clause inoperable, but they would go away and rethink the entire issue. Instead of which, without any apparent hesitation, what they effectively said was: "Thank you very much for pointing out that our clause does not go nearly far enough. Here is a version which gets rid of the lot".

 2495. By the lot, I do not just mean all the provisions I have shown you in section 45, I mean as well the protections of the 1931 Act. You see from that, if you turn to tab 4 in section 3.1 of that Act: "Parliament provides as follows, subject to the provisions of this Act, the protected square - and Lincoln's Inn Fields is one such - shall not be used otherwise for one or more of the following purposes. That is to say, the purpose of an ornamental garden, pleasure ground or ground for play, rest or recreation, in this Act referred to as "authorised purposes". No building or other structure or erection shall be erected or placed on or over any protected square, except such as may be necessary or convenient for or in connection with the use and maintenance of such square for one or more of the authorised purposes. So said Camden: "All right, if section 3(1) has to go as well, then it will go".

 2496. You do not get, as you should have got in my respective submission if the clause had been properly drafted, a proper recognition in clause 112 of what are the protective provisions which the clause is seeking to get rid of. A proper drafting exercise, and an open and transparent drafting exercise, would surely have involved setting out, with precision, what were the protective provisions which the clause was seeking to set aside. Instead of that, all you get is the insouciant opening words of clause 112(1): "Notwithstanding any relevant enactment, rule of law, or trust to the contrary and subject to the following provisions of this section, the council may…". That in the circumstances of this being, as I respectfully suggest it is, an unprecedented exercise in raising and inviting Parliament to endorse a proposition, not hither to endorse, was to say the least unfortunate.

 2497. Assuming that this Committee takes fully the point that the bargain was reached in 1894, and effectively endorsed again in different words in section 3 of the 1931 Act, it is a bargain if the Committee is potentially willing to see it overridden to some extent. The question arises, what should the Committee's approach be to the question whether some limited overriding of those protective provisions can be endorsed on this occasion? One approach would be to say, "The promoters have shown themselves to be sensitive to the need to make their clause as unobjectionable as possible. They have shown themselves to be sensitive to that by making amendments in the course of these very proceedings which have led to the clause assuming the form which it is currently in. The Committee might take the view, "Well, let us have a look at that clause and see whether on balance we think it strikes the right note and constitutes the least possible intrusion that Camden could be expected to accord".

 2498. Another approach to the matter would be to say, Camden began this whole process in the wrong way. What it should have done was to consult widely beforehand, to indicate what it was that it was minded to do and to invite from those concerned a wide variety of views as to the best way of achieving what its object was, setting up with clarity what that object is.

 2499. My Lord Chairman, in a sense, the solution to the problem which the Committee has got, you could come quickly to the answer and say this clause should be rejected because that second approach was not even tried. If you take the view, as a Committee, that that approach should first have been tried, then you could see straightaway the kind of thing that would have needed to have happened. Bodies similar to Lincoln's Inn Fields Association would have needed to be started up again. There would have been consultation with that body and all others reasonably affected. It would have been made clear by Camden what it was that they were hoping to do. Camden would have acknowledged, in the course of that, that they were under a statutory duty to maintain the fields properly already, but would have gone on to say, "What we want to do is something. There will be a legitimate range of views as to whether something more is called for here at all. Here are the improvements going beyond the maintenance for which we are already liable which we would propose for Lincoln's Inn Fields. Do you agree, because if you do, they are going to cost money which we do not believe we can raise from council funds".


 
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