Evidence Session (Sections 2400-2499)|
21 MARCH 2006
2400. Again received by the College?
(Mr Hand) Absolutely,
2401. MISS STADDON: Thank you, no further
2402. CHAIRMAN: Thank you very much.
The Witness withdrew
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
2406. You are a barrister and member of Lincoln's
(Mr Cordara) I
2407. For the last ten years your chambers
have been located at the address I have just mentioned?
(Mr Cordara) That
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
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
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
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
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?
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
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
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
2448. CHAIRMAN: Is that all you have
2449. MR KELSALL: That is all I have
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
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
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
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
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
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
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
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
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".