Commons Sitting of 26 July 1963

Preamble
The House met at Eleven o'clock
PRAYERS
[Mr. SPEAKER in the Chair]
ORDERS OF THE DAY
  CONTRACTS OF EMPLOYMENT BILL
  Lords Amendments considered.

  Clause 1.—(THE RIGHTS OF EMPLOYER AND EMPLOYEE TO A MINIMUM PERIOD OF NOTICE.)
  Lords Amendment: In page 1, line 22, leave out "be void" and insert:
  "have effect subject to the foregoing subsections".
  11.5 a.m.
  The Parliamentary Secretary to the Ministry of Labour (Mr. William Whitelaw): I beg to move, That this House doth agree with the Lords in the said Amendment.
  I suggest that it would be for the convenience of the House if we discussed the next Amendment with this one.
  As it left this House, Clause 1(3) made void any provision in a contract of employment for less notice than the minimum entitlements in subsections (1) and (2). It was agreed in the House that something on these lines was obviously necessary, but as worded the provision could have led to a good deal of uncertainty in some cases.
  The possibility of uncertainty could arise in the following way. If the notice provisions in an employee's contract are made void by Clause 1(3), no definite fixed entitlement is substituted by Clause 1(1) and (2), but, instead, there is simply a guarantee that the entitlement will not be less than the minimum in these provisions. When a contract does not contain any provision on notice—that would apply to a contract if the notice provisions had been made void by Clause 1(3)—I understand that the courts take the view that it may be terminated only on "reasonable" notice, or on the "customary" notice
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  if there is a custom which can be applied to the case under consideration.
  Therefore, as a result of the terms on notice being made void by Clause 1(3) an employee might turn out to be entitled to much more than the minimum in Clause 1(1), or alternatively obliged to give much more notice than the minimum in Clause 1(2). I think that it will be generally agreed that such uncertainty would be undesirable and likely to give rise to litigation. It must also be remembered that in agreeing to a limited entitlement to notice the employee may well have been taking into account other compensating advantages in the contract—extra holidays, perhaps, or higher pay than he would otherwise get.
  The Amendments have the effect that in cases of this kind the minima in subsections (1) and (2) will apply and the position will therefore be quite clear from the outset. I therefore suggest that these Amendments would remove an undesirable element of uncertainty. For that reason, I think that they are desirable. I hope that the House will agree to them.
  Question put and agreed to.
  Subsequent Lords Amendment agreed to.

  Clause 4.—(WRITTEN PARTICULARS OF TERMS OF EMPLOYMENT.)
  Lords Amendment: In page 2, line 36, leave out subsection (1).
  Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
  This Amendment is linked with those in page 4, lines 21 and 22. The House may think that it will be convenient to take the three Amendments together. The only Amendment of substance among these is that in page 4, line 21, at the end to insert:
  "(8A) This section shall not apply to an employee if and so long as—

  (a) his contract of employment is a contract which has been reduced to writing in one or more documents and which contains express terms affording the particulars to be given under each of the paragraphs in subsection (2) of this section, and under each head of paragraph (d) of that subsection, and

  (b) a copy of the contract (with any variations made from time to time) has been given to the employee, or the employee has reasonable opportunities of reading such a copy in

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  the course of his employment, or such a copy is made reasonably accessible to him in some other way,

  and if at any time after the beginning of an employee's period of employment he ceases to come within the exception in this subsection, the employer shall give the employee a written statement under subsection (2) of this section not more than one month after that time.
  (8B) No account shall be taken under this section of employment during any period when the hours of employment are normally less than twenty-one hours weekly, and this section shall apply to an employee who at any time comes or ceases to come within the exception in this subsection as if a period of employment terminated or began at that time."
  Subsection (1), as it left this House, laid down that the Clause was not to apply if and so far as the terms listed in subsection (2) were included in a written contract. The question was raised in another place whether Clause 4(5) as it left this House, which concerns changes in the terms of contracts, was to apply to written contracts. On consideration we took the view that the Clause did not, in fact, deal satisfactorily with changes in the terms of written contracts. The main purpose of the Amendment is to put this right.
  It was also suggested that the Clause, as it left this House, could be interpreted as requiring the employer to provide a written statement identifying the parties and specifying the date when employment began, even where there was a written contract giving all the particulars required by Clause 4(2). The Amendment also removes any possibility of that. The Amendment also removes any possibility of that kind.
  The effect of the Amendment is that no written statement of any kind will be required by Clause 4 if and so long as there is a written contract which contains particulars of all the terms specified in Clause 4(2). I understand that that is what this House intended. This is subject to the condition that the employee either is given a copy of the written contract or has a copy of the contract made available to him. I think it right to put this condition in. The written contract would not be much use to the employee locked up somewhere where he had no access to it.
  If the written contract does not cover all the terms listed in subsection (2), then, under the Amendment, the employer must provide a written statement as he
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  already had to under the Clause as it left this House. He can, of course, use the written contract as a reference document for as many of the terms as he likes so that the written statement may be a simple one. This, again, was the desire of this House. If the terms are originally all set out in a written contract and they change later but no change is made in the written contract, the Amendment provides that at that point the employer will begin to be covered by Clause 4 and have to give a written statement under subsection (2) within one month.
  The second subsection in this Amendment also makes clear the position of an employee whose hours of employment alter so that either he comes within the scope of Clause 4 or drops out of it. If, for instance, an employee's weekly hours are raised to 21 or more, he will be entitled to a written statement within 13 weeks of the date when that happens. I think that this is a useful Amendment which clarifies Clause 4 in a reasonable way. The other two Amendments are purely drafting. They enable the main Amendment to be put at the end of the Clause instead of at the beginning, which is probably better.
  Mr. R. E. Prentice: I think that everyone welcomes the fact that the new wording stops certain loopholes and provides a draft with greater clarity than previously. This is one reflection, among others, of the somewhat muddled approach of the Government to the Bill in that this Clause was considerably amended in this House and had to be amended again in another place. We hope that now they have got it right.
  It is important, I think, to ensure that what is guaranteed to the employee is that either he gets a copy of the statement or the contract, if the statement refers to a written contract, or that it is clearly available to him. That is the intention which the Parliamentary Secretary expressed and it is very important because we are introducing an entirely new principle into labour relations which of itself does not diminish anyone's right, but which could be used by an unscrupulous employer to put things on a piece of paper and afterwards to say, "This is a contract" and try to cheat people who are either

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  careless of their rights or do not understand the position.
  This Clause, with all its ramifications, is rather difficult to follow. I therefore suggest that it is very important for the Ministry to issue some sort of explanatory literature which will be available to employers and trade union officials and others setting out in ordinary language what is involved in order to discourage any bad employer from using this to cheat his employers and to ensure that trade unions and individuals can check on what they are entitled to under the Clause.
  The Minister of Labour (Mr. John Hare): I will be very pleased to follow the suggestion of the hon. Member for East Ham, North (Mr. Prentice). That was my intention. We want to ensure that as much lay language as possible is used.
  Mr. A. J. Irvine: I agree with what my hon. Friend the Member for East Ham, North (Mr. Prentice) has said and I am pleased at the Minister's response.
  I can understand the usefulness of the Amendment to the extent that its effect is to avoid duplication of a contract in writing already containing all the terms required by the Bill to be in the written statement. I can understand a provision which has the effect that when in such a case there is an amendment of the terms, that must be conveyed to the employee just as stringently as when the terms were comprised in a document in writing such as is referred to in the Clause as is in the written statement contemplated by the Bill.
  It is a little difficult to tell at once from the wording of the Clause whether this Amendment will have any effect on the law relating to contracts in so far as it relates to contracts for service containing material which is not required to be in the written statement called for by the Bill. My apprehension is that it does not alter the law save within the context of the matters required to be in the written statement. I do not know whether or not that can be cleared up immediately, but I have a doubt about the Amendment's effect in that regard.
  Mr. Whitelaw: As on the very large number of occasions when the hon. and
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  learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) brings these points forward, I understand that his apprehensions are correct. If, on subsequent investigation, there should be any change in that, I will let him know. However, I understand at the moment that the answer to him is, "Yes".
  Question put and agreed to.
  Subsequent Lords Amendments agreed to.
  Lords Amendment: In page 4, line 30, at end insert:
  "( ) The last foregoing subsection shall not affect the obligation to specify the date when the employment began in a statement under subsection (1) of this section, but in such a statement given to an employee whose period of employment began before the date of the coming into force of this section, and is not less than five years, the obligation may be discharged by stating that the employee has been employed for not less than five years."
  11.15 a.m.
  Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
  The Amendment deals with only two minor points, but it is nevertheless useful.
  Clause 4(2) of the Bill, as it left this House, obliges the employer to give his employee a written statement not later than 13 weeks after the beginning of the employment. Clause 4(9) as it then was dealt with the position of employees already in employment at the date when Clause 4 was brought into force. They are to have written statements within 13 weeks of that date. Subsection (9) brings this about by saying that for employees already in their jobs when Clause 4 comes into force references to the date when Clause 4 comes into force are to be substituted for references in the Clause to the beginning of the period in employment.
  This, apparently, could have one curious side effect. The written statement has to specify the date when the employment began. Clearly, it should do this for people already in employment when the Bill comes into force as well as people engaged afterwards. But without the Amendment Clause 4(9) could have been taken as meaning that the written statement should specify instead the date when Clause 4 comes into force. The Amendment removes that possibility.

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  The Amendment has a further effect. It may not be easy for the employer to say exactly the date when an employee with many years of service was taken on. We do not want to put the employer to the labour of unnecessary research, and I am sure that the House will agree with that. For the purposes of the Bill, it does not matter when the employer was taken on so long as it was over five years ago. The Amendment, therefore, allows the employer in this case simply to say in the written statement that the employee has been employed not less than five years.
  I hope that the House will agree that this is a sensible change which removes a possible doubt and that it will accept the Amendment.
  Question put and agreed to.
  Lords Amendment: In page 4, line 31, leave out subsections (10) to (15) and insert them as new Clause "A":
  "A.—(1) If a person—

  (a) without reasonable excuse fails to comply with any of the requirements of section 4 of this Act, or

  (b) in a statement under that section or in any document prepared for the purposes of subsection (7) or subsection (8) of that section includes anything which to his knowledge is false in a material particular, or recklessly includes anything whcih is false in a material particular,

  he shall be liable on summary conviction to a fine not exceeding twenty pounds.
  (2) If an employer has failed to give the statement required under subsection (3) or subsection (6) of the said section 4 within the time limited by that section then, without prejudice to the brnging of proceedings under the foregoing subsection, the employee may by notice in writing to the employer require him within a period of not less than one week from receipt of the notice, to make good his default, and if the default continues after the expiration of that period, the employer shall be liable on summary conviction, in the case of a first offence under this subsection to a fine not exceeding twenty pounds, and in the case of a second or subsequent offence under this subsection to a fine not exceeding one hundred pounds.
  (3) If an employee's employment terminates within the time limited by the said section 4 for giving a statement required under subsection (3) or subsection (6) of that section, and before the statement is given, no offence is committed under this section in respect of the failure to give the statement.
  (4) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate,
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  or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence, and shall be liable to be proceeded against and punished accordingly.
  In this subsection, the expression 'director', in relation to any body corporate which is established by or under any enactment for the purpose of carrying on under national ownership any industry or part of an industry or undertaking and whose affairs are managed by the members thereof, means a member of that body,
  (5) The Minister shall have power by order to provide that the said section 4 shall have effect as if such further particulars as may be specified in the order were included in the particulars to be included in a statement under that section.
  (6) An order under the last foregoing subsection may contain such transitional and other supplemental and incidental provisions, including provisions amending subsection (3) of the said section 4, as appear to the Minister to be expedient, and may be varied or revoked by a further order so made.
  Any such order shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament."
  Mr. Whitlaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
  This is a very long Amendment, but it is purely drafting. Clause 4 was already long when it left this House. It then took up about three printed pages. It would have been made longer still by Amendments; adopted in another place to clarify the provisions about written contracts which we have just considered. We were solicitous, as always, to help the hon. Member for East Ham, North (Mr. Prentice) and the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine)—and, indeed, everyone concerned. We therefore felt it right to split the Clause in two. This the Amendment does, by tuning subsections (10) to (15) into a separate Clause.
  I hope that the House will agree that this is desirable, and in the general interest.
  Question put and agreed to.

  New Clause.—(POWER TO VARY NUMBER OF WEEKLY HOURS OF EMPLOYMENT NECESSARY TO QUALIFY FOR RIGHTS.)
  Lords Amendment: In page 6, line 37, at end insert new Clause "B":
  "B.—(1) The Minister shall have power by order to provide that this Act shall have effect—

  (a) as if for the reference to twenty-one hours in section 4(8A), or

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  (b) as if for each of the references to twenty-one hours in paragraphs 3 and 4 of Schedule 1 and paragraph 3(3) of Schedule 2

  there were substituted a reference to such other number of hours less than twenty-one as may be specified in the order.
  (2) Orders under the foregoing subsection may specify different numbers of hours for the purposes of paragraphs (a) and (b), and an order under paragraph (b) shall affect the operation of Schedule 1 to this Act as respects periods before the order takes effect for the purposes of sections 1 and 2 of this Act, as well as respects later periods.
  (3) An order under this section may contain such transitional and other supplemental and incidental provisions as appear to the Minister to be expedient and may be varied or revoked by a further order so made.
  An order under this section shall be made by statutory instrument, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House."
  Mr. Hare: I beg to move, "That this House doth agree with the Lords in the said Amendment.
  The Bill at present applies only to employees who normally work for their employers 21 hours or more a week. In our earlier discussions, I said that that was so that the Bill should benefit those who depend on that employment for at least a substantial part of their livelihood, and and that inconsiderable and spare-time employments should be excluded. The House will remember that after discussion of this 21-hour limit on Report, my hon. Friend the Parliamentary Secretary said that the figure of 21 seemed right at the present time but that the Government would consider whether there should be power to vary the figure in the light of developments in working hours. We subsequently tabled this Amendment, which gives this power to the Minister of Labour.
  Clause 5 already contained the power to alter the scope of exclusions from the Bill in the light of developments. This new Clause similarly enables at 21-hour limit to be altered so that if, in the future, there are sufficient numbers of people who derive a substantial part of their livelihood from working less than 21 hours a week, they can be brought within the scope of the Bill.
  I should point out that the Clause enables the number of hours to be reduced below 21, but not to be raised above. The 21-hour limit can be lowered separately for the requirements
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  on written statements or for the notice provisions of the Bill. In the light of experience, it may prove desirable to fix the number of hours at different points for the two parts of the Bill.
  Finally, I point out that Orders made under this new Clause will be subject to an affirmative Resolution. I imagine my hon. Friend the Member for Crosby (Mr. Graham Page) will have noted that—I hope with approval. It seems right that this Clause should be in step with Clause 5 in this respect, because in both cases the exercise of the powers can result in large numbers of people being brought within or excluded from the scope of the Bill.
  Mr. Prentice: This new Clause continues, as it were, the process of dividing the original Clause 42. I thank the Parliamentary Secretary for saying that he wants to help my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) and myself, but I must warn him that, when he said that, there were signs of some discontent on the benches behind him. He may be stirring up a revolt there, as his hon. Friends probably think that he should be solicitous for them, also.
  As I understand the Minister, 21 hours were chosen because 42 hours is now the standard working week over a greater part of industry, so that it was felt right to confine the operation of the Clause to those working at least half that time. Presumably, the Minister is now saying that if there is a reduction to a 40-hour working week, he wants power to make a reduction to 20 hours, and so on.
  There may be a case for using this power rather more liberally. Fairly large numbers of part-time workers are excluded from the Clause—domestic workers, home helps, people in the school meals service, and so on—and experience may show them to be more in need of written statements of terms of employment than are those who work full-time. The latter are more likely to be covered by well-known agreements and, are more likely to be in strongly organised unions, and to them the written statement may not make much difference.
  People who work on a part-time basis usually have fewer agreements applying to them so that, in some cases,

  1973
  there is scope for the imposition of unsatisfactory conditions and exploitation. If written statements became standard they might help to raise the standards of these people. We therefore urge the Minister to use more liberally the power he will have to vary the 21-hour limit in the light of information coming to his Ministry about conditions in certain types of employment.
  At an earlier stage of the Bill we took this argument to a Division. We cannot do that now, but I take the opportunity to remind the right hon. Gentleman of our views, and I hope that he will use these powers to regulate in the way I suggest.
  Mr. Graham Page: I am grateful to my right hon. Friend for the last paragraph of the Amendment, which requires an affirmative Resolution before an Order is made, but the latter part of subsection (2) appears to be in the form of retrospective legislation. It states that
  "… an order under paragraph (b) shall affect the operation of Schedule 1 to this Act as respects periods before the order takes effect for the purposes of sections 1 and 2 of this Act, as well as respects later periods."
  Subsection (1,b) refers to paragraphs 3 and 4 of Schedule 1, which are headed respectively "Normal working weeks" and "Employment governed by contract". I am concerned about how this new Clause affects that latter paragraph.
  Paragraph 4 of Schedule 1 gives the calculation of the period of employment by reference to the number of hours a man has worked during the past weeks. Although a man has for the past 12 months worked less than 21 hours a week and therefore does not come within the Measure at all and the employer has no obligations about him, if an Order is to say that because he has worked only 15 hours a week he shall come within these provisions it will be a form of retrospection which may cause a considerable amount of confusion to employers and employees.
  I hope that I am misinterpreting this, and that the new Clause will not have that effect. Nevertheless, these words, logically read, seem to have the effect of altering the relationship of employer and employee under the Bill by reference to a back period of employment. I would be very grateful if my right hon. Friend could explain this a little further.
  Mr. Hare: With the leave of the House, I can tell the hon. Member for East Ham, North (Mr. Prentice) that this Amendment goes some way to please him, and provides the flexibility which he felt was lacking before.
  My hon. Friend the Member for Crosby (Mr. Graham Page) will appreciate that Schedule 1 already works retrospectively, because employment engaged in before the Bill comes into force will count, so I think that he will agree that what we are doing is quite logical.
  Question put and agreed to.

  Clause 6.—(INTERPRETATION.)
  11.30 a.m.
  Lords Amendment: In page 7, line 5, after "apply" insert:
  "in relation to any contract made before they come into force and".
  Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
  This is a clarifying Amendment. Its purpose is to remove any possible doubt whether the notice provisions of the Bill are to apply to contracts already existing when the Bill comes into operation. Obviously, they must do so. We were advised, however, that there was a possibility that legal doubt could arise with the Bill as it left this House. The Amendment ensures that there can be no ambiguity on the point.
  Question put and agreed to.

  Schedule 2.—(RIGHTS OF EMPLOYEE IN PERIOD OF NOTICE.)
  Lords Amendment: In page 11, line 7, after "and" insert:
  "subject to the following sub-paragraph".
  Mr. Hare: I beg to move, That this House doth agree with the Lords in the said Amendment.
  It would be convenient also to take the Lords Amendments: In line 8, after first "hours" insert:
  "(in this paragraph referred to as 'the number of hours without overtime')"
  and in line 8, at end insert:
  "(2) If in such a case—

  (a) the contract of employment fixes the number, or the minimum number, of hours of employment in the said week or other period (whether or not it also provides for the reduction of that number, or minimum

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  number of hours in certain circumstances), and

  (b) that number or minimum number of hours exceeds the number of hours without overtime,

  that number or minimum number of hours (and not the number of hours without overtime) shall be the normal working hours."
  Paragraph 2 of Schedule 2 contains a guarantee of minimum pay during notice for employees who have "normal working hours". Paragraph 1(1) gives guidance for deciding whether an employee has normal working hours and what they are. It provides that any employee who receives overtime pay for working more than a fixed number of hours is to be regarded as having normal working hours, and furthermore that the fixed working hours are to be regarded as normal working hours. This provision is essential to give precision to what is meant by normal working hours in this Schedule. In a great majority of cases I think that it will work fairly and reasonably without need of qualification.
  When we discussed the Schedule on Report the hon. Member for Paisley (Mr. J. Robertson) suggested that it failed to take sufficient account of overtime. At the conclusion of the discussion, my hon. Friend the Parliamentary Secretary undertook to consider whether any changes should be made as regards overtime, though of course he drew a sharp distinction between cases where overtime is a regular accepted feature of the job and cases where it is exceptional and perhaps optional, and he pointed out that there was no case for including the latter.
  Further consideration has suggested that there are cases where the provisions in paragraph 1(1) do not work satisfactorily. There are employments where the employee receives overtime pay for work done in hours which are unquestionably part of the normal working hours. For example, milk roundsmen commonly work a seven-day week and this often includes a regular number of hours at overtime rates of pay. Another example would be an employee engaged in an engineering works under a contract which fixed the figures hours of work at 45, although the agreed standard week in the industry is 42 hours. He will get overtime pay for the extra three hours.
  The Amendments meet these cases. They result in the addition of a new
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  sub-paragraph after paragraph 1(1). This provides that if the contract fixed a higher number of hours of employment than the fixed number after which there is overtime pay, then the higher number of hours are to be regarded as the normal working hours. I hope that the hon. Member for Paisley, who is not here, will accept that the Amendments meet the difficulties in a reasonable way and that with this explanation the House will agree that they are desirable Amendments.
  Mr. Prentice: I thank the Minister for meeting the points raised on previous stages by my hon. Friend the Member for Paisley (Mr. J. Robertson) and other hon. Members. It was clear that the existing provision did not meet the case of those where overtime was a regular feature of the working pattern. We on this side of the House would say that this sort of situation is unfortunate and that overtime should be something exceptional and not a regular pattern. The fact is, however, that it is a regular pattern and that as originally drafted these people would not have been entitled under this provision to their normal pay during period of notice.
  Mr. David Renton: I should like to refer to a small drafting matter. In my opinion, the first of the Amendments is quite unnecessary. The words "subject to the following sub-paragraph" carry drafting refinement a little too far. Every provision of every Bill is always subject to every other provision of the Bill. Sometimes, to draw attention to the possibility of two parts of a Bill not being easily dovetailed when the Bill is read, it is convenient to put in the words "subject to" whatever it may be, such as paragraph 5 or Section 21, but to say "subject to the following sub-paragraph" is quite unnecessary.
  I am raising this point academically in relation to this Bill, because there is nothing that one would wish to do about it at this stage and the last thing that I would wish to do would be to embarrass my right hon. Friend. I draw attention to the matter merely in the hope that it will be taken as a guide to the future.
  Question put and agreed to.
  Subsequent Lords Amendments agreed to.
  Lords Amendment: In page 11, line 25, after "done" insert "in the period".
  Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
  Paragraph 2(2) of the Schedule sets out the guarantee of minimum pay which is to apply to an employee who is paid a time-rate or a flat-rate. He is described as an employee whose remuneration
  "… in normal working hours … does not vary with the amount of work done".
  It is just conceivable that this form of words could be taken as excluding employees whose pay in normal hours varies. For example, the hours could be three weeks at 40 hours and then a fourth week at 48 hours. Although these workers may be time-rate workers and should be covered by paragraph 2(2) they naturally get more pay in the fourth week and it could be said that their pay varied with the amount of work they did.
  The Amendment will ensure that what is referred to in paragraph 2(2) is pay which does not vary with the amount of work done in a given period. I hope that the House agrees that this is a useful Amendment.
  Question put and agreed to.
  Lords Amendment: In page 11, line 28, after "throughout" insert "the part of".
  Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
  This Amendment is linked with that in line 28, at end insert:
  "covered by paragraphs (a), (b) and (c) of sub-paragraph (1) of this paragraph"
  and I suggest that it might be convenient to take them together.
  The Amendments make a further change in paragraph 2(2) of the Schedule. The provisions of paragraph 2 apply if at any time during notice an employee finds himself in one of the circumstances listed in paragraph 2(1), that is to say he is put on short-time or laid off or is away sick or on holiday. Under paragraph 2(2) as it left this House a time worker in this position was to be paid not less than if he were working throughout the normal working hours.
  That guarantee could on occasion have had odd results. For example, an em-
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  ployee might miss a day in his first week of notice through sickness. The guarantee would, therefore, have applied. If later on during notice the employee took an afternoon off to see a football match the guarantee would have meant that he was entitled to pay for the hours he was away watching football.
  The Amendments prevent this by modifying the guarantee to provide only that the employee's pay during notice shall not be less than it would have been if he had been working during the hours he missed owing to shortage of work or sickness or holiday.
  Question put and agreed to.
  Subsequent Lords Amendment agreed to.
  Lords Amendment: In page 11, line 34, leave out "paid to him" and insert:
  "payable to him by the employer".
  Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
  This Amendment and the next two all relate to the guarantee of a minimum payment to pieceworkers during notice, and I suggest that the House might find it convenient to take them together.
  Under paragraph 2(3) and (4), piece workers whose contracts fix normal working hours hut who, through shortage of work, illness, or their holidays, are unable to work those hours in full are to be paid for the hours not worked at not less than their average hourly rate of pay during the four weeks before notice was given.
  Paragraph 2(4) lays down certain rules about calculating the average hourly rate of pay. In working it out, no account is to be taken of periods of sickness or holidays, or of the sick pay or holiday pay for those periods. That is because pay at these times is often at a reduced rate and it would, therefore, be unfair to the employee to include it in this calculation.
  The reason for these Amendments is that on further consideration we concluded that there were other circumstances in which the employee might have a reduced rate of pay which should not be reflected in the averaging calculation. Work might be temporarily held up by the weather or a breakdown and an employee who was standing by unable

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  to work at such a time might get paid at, say, only half his normal rate. Under a guaranteed week arrangement an employee might have to be available for work throughout the week—say, 44 hours—but get the equivalent of only 36 hours wages. The Amendments put this right by providing that only the hours actually worked and the pay for those hours shall be taken into account in working out the average. They thus ensure that the principle underlying this part of Schedule 2 is applied, namely that an employee should receive during notice not less than the contractual rate for his full normal working hours.
  That was the clear intention of this House and I hope, therefore, hon. Members will agree that this Amendment is desirable.
  Question put and agreed to.
  Subsequent Lords Amendments agreed to.
  Lords Amendment: In page 13, line 5, after "if" insert:
  "after the notice is given and".
  Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
  I think that it might be convenient to discuss with this Amendment the remaining four Amendments on the Notice Paper.
  This Amendment affects paragraph 5 of Schedule 2. The purpose of that paragraph is to prevent an employee who gives notice intending to go on strike from having his pay protected by the Bill during the period of notice. However, the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) pointed out on Report that the paragraph as it then stood could possibly be construed as going much further than this and meaning that if at any time during his employment an employee has gone on strike, he is to be deprived thereafter of the protection of Schedule 2during any notice. That was, of course, as I made clear to the hon. and learned Member during the Report stage, far from our intention, The Amendment, I hope, prevents any possibility of paragraph 5 being taken
  1980
  in this way. As altered, it will apply only if the strike takes place after the notice is given.
  Very much the same point could have been made about paragraph 6 of the Schedule. This paragraph is needed to make clear what is to happen to the rights in the Schedule if there is a breach of contract during the period of notice. As it stood it could possibly have been taken as being applicable if at any time during the whole course of the employment there had been a breach of contract. The remaining four Amendments remove this possibility by making it clear that what is being referred to is breach of contract during the period of notice.
  The last of these four Amendments also makes another change. As paragraph 6(2) stood, it could be brought into operation by any breach of contract by the employee, however trivial. In other words, a clerk could arrive a minute late at his office and therefore forfeit his entitlements under the Schedule for the rest of the period of notice. The Amendment puts this right by providing that the employee only forfeits his rights if he commits a breach which the employer rightfully treats as terminating the contract.
  I hope that the hon. and learned Member for Edge Hill will feel that these Amendments meet the point on which he expressed anxiety on Report.
  11.45 a.m.
  Mr. A. J. Irvine: I am grateful to the Government for giving the consideration that they have to the points which I made and for the action that they have taken.
  If we consider the last of these Amendments by itself, it is rather a startling and unforeseen consequence of the argument that I put forward. I think that the House will readily acknowledge that fact. I therefore felt some concern about it. However, I accept that the overall effect of these Amendments is that the case that I put forward is met and that that has really been their object. I am, therefore, grateful for what has been done.
  Question put and agreed to.
  Remaining Lords Amendments agreed to.

OFFICES, SHOPS AND RAILWAY PREMISES BILL
Lords Amendments considered.

Clause 1.—(PREMISES TO WHICH THIS ACT APPLIES.)
Lords Amendment: In page 2, line 15, leave out "to persons resorting thereto".
11.47 a.m.
The Parliamentary Secretary to the Ministry of Labour (Mr. William Whitelaw): I beg to move, That this House doth agree with the Lords in the said Amendment.
Perhaps it would meet the convenience of the House if we also discussed the allied Amendments in page 2, line 16, and page 55, line 11.
The House will recall that on Report we debated at some length the application of the Bill to a mail order business. I said then, and I take the opportunity to reaffirm now, that a mail order business will be covered by the wording of Clause 1(3,a,ii). Nevertheless, we promised to look again at the definitions in Clause 1, and our conclusion was that the definition of wholesale shop premises in Clause 1(3,a,iii) needed to be widened to include wholesale premises which do business with customers who do not resort to them.
The definition in the Bill as it left the House corresponded closely to that in Section 74(1) of the Shops Act and would have excluded wholesale premises to which customers do not resort. This would have excluded, for example, the wholesale counterpart of a mail order business. However, the welfare provisions in Section 38 of the Shops Act apply, among other things, to any warehouse occupied for the purpose of his trade by any wholesale dealer or merchant.
This is a wider definition, and, since the Bill is designed to repeal Section 38 of the Shops Act when it comes into force, we believe that the Amendment made in the other place, which left out the words "to persons resorting thereto", is necessary to avoid a situation in which the benefits of protective legislation are removed from some classes of workers.
The object of the Amendment to page 2, line 16 is to leave warehouses belonging to the owners of docks, wharves or quays
1982
within the Factories Act since that Act deals generally with safety, health and welfare in docks. On the other hand, the Amendment in page 55, line 11 transfers to this Bill from the Factories Act any wholesale warehouses which use mechanical power so that all wholesale warehouses, other than those in factories or belonging to owners of docks, may be dealt with under the Bill.
Question put and agreed to.
Subsequent Lords Amendment agreed to.
Lords Amendment: In page 2, line 28, leave out from "including" to end of line 32 and insert:
"dock storage premises or colliery storage premises".
The Minister of Labour (Mr. John Hare): I beg to move, That this House doth agree with the Lords in the said Amendment.
Perhaps it would be convenient if, with this Amendment, we discussed the subsequent Amendments in line 37, to leave out "and", and in line 40, at end insert:
"(d) 'dock storage premises' means fuel storage premises which constitute or are comprised in premises to which certain provisions of the Factories Act 1961 apply by virtue of section 125(1) (docks, etc.) of that Act; and
(e) 'colliery storage premises' means fuel storage premises which form part of premises which, for the purposes of the Mines and Quarries Act 1954, form part of a mine or quarry, other than premises where persons are regularly employed to work by a person other than the owner (as defined by that Act) of the mine or quarry.".
When we looked again at the definition of fuel storage premises in Clause 1 we found that it would have brought within the scope places which we did not intend the Bill should cover. This arises from the fact that the National Coal Board and other owners of coal mines or opencast quarries are engaged in the sale of solid fuel and that some parts of the area immediately adjacent to the pithead or quarry are used
"for the storage of such fuel intended to be sold in the course of that trade or business".
Therefore, the definition, as it left this House, would apply the Bill to most if not all of the places where colliery surface workers are employed. I do not think that this is the sort of place which we want the definition to cover. We wish to cover "land sale" depots in mine

1983
areas and depots in which coal merchants' employees or employees of outside contractors are regularly employed. But the employees of the Coal Board or other mine or quarry owner already enjoy the kind of benefits offered under the Bill. As the House knows, the welfare amenities for colliery workers are now of a very high standard and in addition these workers have the protection of the Mines and Quarries Act, 1954. It would be an unnecessary duplication, therefore, if they were covered by the Bill as well. The Amendments moved in another place excluded the fuel storage premises at mines or quarries other than those premises where outside persons are employed to work. The Amendments do not change the application of the Bill to coal depots on the railways and in any other places away from mines and quarries.
Question put and agreed to.
Subsequent Lords Amendments agreed to.
Lords Amendment: In page 3, line 13, after "include" insert "(a)".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
It may be convenient also to discuss the second Amendment in line 13, after first "premises" insert "(b)".; and the Amendment in line 15, at end insert
"or
(c) premises wherein are carried on such processes or operations as are mentioned in section 123(1) (electrical stations) of the Factories Act 1961 and for such supply as is therein mentioned".
The purpose of these Amendments is to exclude railway electrical supply stations from the definition of railway premises under the Bill. That is because Section 123 of the Factories Act applies and will continue to apply to those electrical stations. Office premises in these stations will, however, still come under the Bill by virtue of Clause 72(1).
Question put and agreed to.
Subsequent Lords Amendments agreed to.

Clause 5.—(OVERCROWDING.)
Lords Amendment: In page 4, line 42, at end insert:
"and in determining, for the purposes of this subsection, whether any such room is so over-
1984
crowded as aforesaid, regard shall be had (amongst other things) not only to the number of persons who may be expected to be working in the room at any time but also to the space in the room occupied by furniture, furnishings, fittings, machinery, plant, equipment, appliances and other things (whether similar to any of those aforesaid or not)".
Mr. Hare: I beg to move, That this House doth agree with the Lords in the said Amendment.
During the Committee stage there was considerable discussion on an Amendment moved by the hon. Member for Sheffield, Park (Mr. Mulley) which would have required inspectors to take into account space occupied by furniture, furnishings, fittings and machines in determining whether the standard of 40 sq. ft. per employee was satisfied. A similar Amendment was moved in another place and was resisted for the same reason—because it would have required inspectors to spend a lot of time with a tape measure. We have, however, looked again at the matter and tried to meet the point.
The Government tabled the Amendment which I am now moving and the Amendment will make clear that in determining whether a room is overcrowded under the provisions of Clause 5(1), an inspector must have regard not only to the number of persons working in the room but also to the space occupied by such things as furniture and machinery. This, I hope the House will agree, is a useful strengthening of the provision and provides a practical contribution to deal with the problem of excessive amounts of furniture and machinery without requiring inspectors to undertake detailed measurements in every case.
Mr. Frederick Mulley: I am happy that the Minister has found it possible to make some reference in the Bill to the undeniable Pact that the amount of working space is dependent not only on the actual dimensions of the room, the distance between the walls, but the space which is uncluttered by furniture, machinery, and so on.
I made the point in Committee that under the provisions in the Bill, theoretically, it would be possible to have 10 people working in a room, but practically impossible to get even one person into the room if the quantity of furniture in it were excessive. I welcome the fact

1985
that this is recognised in the circumstances of subsection (1). But, to be frank, this does not meet the point which was contested during the Committee stage, because it does not apply to the standard which ultimately—a long time from now—will apply generally, the standard of 40 sq. ft., or 400 cu. ft.
I regret very much that the Minister has not found it possible to make some provision with regard to the other subsections of this Clause. Even at this late stage I should have been willing to move an Amendment which would have extended the provision to the whole of the Clause. I did not do so because I do not wish to prejudice the passing of the Bill into law at the earliest possible opportunity. My union, the Clerical and Administrative Workers' Union, and its predecessor, the National Union of Clerks, has campaigned for this legislation over a number of years and we do not wish at any time during the passage of this Bill to press any point so far as might result in delaying the very welcome enactment of this legislation.
I hope that we shall see it on the Statute Book next week.
Mr. Graham Page: I do not wish to discuss the merits of this Amendment, which deals with the question of cluttering up rooms. I wish to refer to the "cluttering up" of the Amendment itself by the use of unnecessary words. During the Committee stage I was told on many occasions by my hon. Friend the Parliamentary Secretary that words in Amendments which I was proposing were unnecessary and that we ought not to have unnecessary words in Amendments.
In this Amendment we have the words, "other things" occurring twice. It states:
"regard shall have (amongst other things) …."
And the Amendment finishes by talking about, "appliances and other things…".
Surely we do not need the words other things" cluttering up this Amendment as well as the rooms and making not the practical contribution to the Bill which was referred to by my right hon. Friend, but I am afraid, a most confusing and impracticable one.
Mr. R. E. Prentice: I welcome the Amendment in the same sense as did my hon. Friend the Member for Sheffield, Park (Mr. Mulley) because
1986
it seems to recognise a principle to which we attach some importance; although we would rather it were tacked on to subsection (2) where we think it would have had much more effect. We consider that the tape measure to which the Minister referred ought to be in use on some occasions when it is clear that there is overcrowding with furniture.
What has been said by the hon. Member for Crosby (Mr. Graham Page) seems to confirm doubts which I have in my mind about the practical effect that this Amendment will have. It seems to me that as the Clause is drafted an inspector has to take account of overcrowding to the extent that it might cause risk of injury to health of persons working therein. If the room were overcrowded with big articles of furniture, I assume that the inspector would have to take into account the furniture in deciding whether the overcrowding was such as to cause injury to health.
I have a rather sceptical view about this. I support it because I hope that, in a Clause which is vaguely worded in any case, the addition of these extra words may, indirectly, lead to higher standards. It seems to me that this is a tremendously important part of the Bill and one in. respect of which a lot of premises fall short even of the modest standards which are proposed.
12 noon.
I am strengthened on that point by a document reporting a survey of offices. The survey was done recently by an organisation known as Personnel Management and Methods and Initial Services Ltd., which studied the position in 256 small firms employing up to 200 employees. About 14 per cent. of the premises fell short of the standards in the Clause dealing with overcrowding. It was also clear from the attitude of some employers that they have what I think all of us, including the right hon. Gentleman, would consider a very reactionary view. One manager said that his private office was 20 sq. ft. and much too large and that he often apologized to clients for the waste of space.
This sort of attitude is very difficult to understand. I quote it to indicate the considerable task that the offices inspectorate under this Clause will face in bringing these places up to the standards which we on this side of the House still

1987
regard as too low. We hope that the Amendment will make a practical difference to the way in which the Clause is enforced and will lead to some higher standards. We believe that it would have been clearer had it been tacked on to the end of subsection (2), but as far as it goes we hope that it will have the effect that the Minister has in mind.
Question put and agreed to.

Clause 6.—(TEMPERATURE.)
Lords Amendment: In page 6, line 21, at end insert:
"(6) It shall be the duty of the employer of persons for whom means of enabling them to warm themselves are provided in pursuance of subsection (3) of this section to afford them reasonable opportunities for using those means, and if he fails so to do he shall be guilty of an offence".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
Where persons are employed in rooms where the maintenance of a reasonable temperature is not reasonably practicable or would cause deterioration of goods, subsection (3) of Clause 6 requires the provision of conveniently accessible and effective means of enabling them to warm themselves. But it was represented in another place that no duty was placed upon employers to give their employees reasonable opportunities of availing themselves of these alternative means of warming.
The Government sought to meet this point by the addition of the words in this Amendment, which, I believe, will strengthen the protection given to employees by this Clause.
Question put and agreed to.

Clause 9.—(SANITARY CONVENIENCES.)
Lords Amendment: In page 7, line 22, leave out:
"or are intended to be".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
Perhaps this Amendment is best explained if I first state the purpose of subsection (4) of Clause 9. This is to enable the Minister by regulation to require separate sanitary accommodation for the sexes. When the Bill left
1988
this House, the subsection stated that where persons of both sexes were, or were intended to be, employed to work on the premises, the facilities would not be deemed to be suitable unless separate accommodation was afforded for persons of each sex.
We have thought this over and we do not think that it would be possible to enforce a provision of the regulations in cases where the employer merely had the intention of employing both sexes at some date in the future. In our view these words are unnecessary and as a result of an Amendment in another place they were left out.
The Amendment has no effect on any obligations which may be imposed by regulations under subsection (4) to provide separate accommodation when both sexes are actually in employment.
Question put and agreed to.

Clause 10.(WASHING FACILITIES.)
Lords Amendment: In page 8, line 13, leave out: "or are intended to be".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
This is identical with the last one except that it relates to separate washing facilities for the sexes. The same arguments apply. The words are regarded as unnecessary and the Amendment deletes them.
Question put and agreed to.

Clause 11.(SUPPLY OF DRINKING WATER.)
Lords Amendment: In page 8, line 45, leave out "drinking" and insert "clean".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
As subsection 3(b) was originally drafted, facilities had to be provided for rinsing drinking vessels in drinking water. It was argued in another place that an employer might provide a sink and hot water for washing up and still have to provide further facilities for rinsing glasses in drinking water. By substituting the word "clean" for "drinking", the Amendment has made

1989
it clear that, so long as the water is clean, occupiers have the choice of providing hot or cold water for rinsing glasses.
Dr. Barnett Stress: How does one define the word "clean"? If one is washing up with water it is desirable that it should not be contaminated by bacteria. Does the hon. Gentleman suggest that hot water from a hot tap necessarily is clean in a surgical sense? In what way is it clean?
Mr. Whitelaw: I do not think that I would be very ready to pronounce on either hot water or cold water from a tap, even if it is described as drinking water, and claim that it is necessarily always clean. I would not like, "off the cuff", to give a definition of what it clean. Probably the truth is that water is clean when it is obviously so. It is one of those cases where we know a thing when we see it, but cannot define it.
Question put and agreed to.

Clause 13.—(SITTING FACILITIES.)
Lords Amendment: In page 10, line 4, after "use" insert
"at suitable places conveniently accessible to them".
Mr. Hare: I beg to move, That this House doth agree with the Lords in the said Amendment.
The provision of seats in shops for shop assistants was debated at some length when I introduced a new Clause about sitting facilities on the Report stage. As the hon. Member for Ogmore (Mr. Padley) forecast, the Opposition returned to this subject in another place.
It was argued that some employers might locate seats in inaccessible positions so that in some kinds of shops employees would never have opportunities for using those seats without detriment to their work. This Amendment is intended to deal with that possibility. It provides that the seats have to be provided at suitable places conveniently accessible to the employed persons.
Question put and agreed to.
Lords Amendment: In page 10, line 11, leave out from "it" to end of line 14 and insert:
"facilities provided for their use in pursuance of subsection (1) of this section shall
1990
be deemed not to be sufficient if the number of seats provided and the number of persons employed are in less ratio than 1 to 3".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
This is simply a drafting Amendment. There is no change in the intention of this provision but the new wording makes it clear that a lesser ratio than one to three seats to persons employed would not be deemed to be sufficient for the purpose of subsection (1). I think that this rephrasing is an improvement.
Question put and agreed to.

Clause 18.—(AVOIDANCE OF EXPOSURE OF YOUNG PERSONS TO DANGER IN CLEANING MACHINERY.)
Lords Amendment: In page 12, line 19, at end insert:
"(2) In this section, 'young person' means a person who has not attained the age of eighteen".
Mr. Hare: I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment anticipates the two following Amendments which delete the references to young persons in Clause 19. Since the term "young person" will then appear only in. Clause 18, it is desirable for drafting reasons to transfer the definition from Clause 88 to Clause 18. This Amendment therefore puts the definition of a young person into Clause 18 and a later Amendment will delete it from Clause 88.
Question put and agreed to.
Subsequent Lords Amendments agreed to.

Clause 20.—(REGULATIONS FOR SECURING HEALTH AND SAFETY.)
Lords Amendment: In page 12, line 36, after "persons" insert
"or persons of any class".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
Perhaps we may discuss the following Amendment, in page 12, line 37, leave out "that class" and insert
"the class to which the regulations apply".
at the same time, since it is consequential.

1991
The view was expressed in another place, that the Minister should take power to make regulations extending to disabled or other specified persons the prohibition in Clause 18 on young persons cleaning moving machinery if to do so would expose them to danger. The Government decided, however, to take a general power to make protective regulations of this kind as regards persons of any class, and fox that reason this Amendment relates to Clause 20 and not specifically to Clause 18. I am sure that this Amendment will commend itself to the House.
Question put and agreed to.
Subsequent Lords Amendment agreed to.

Clause 27.—(PENALIZATION OF NEGLIGENT ACTS ANDINTERFERENCE WITH EQUIPMENT, &C.)
Lords Amendment: In page 19, line 18, leave out "therein mentioned" and insert:
"mentioned in, as the case may be, the one section or the other".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
This is a drafting Amendment which is required to clarify the meaning of the subsection.
Mr. Niall MacDermot: I thought that in commending this Amendment the Parliamentary Secretary might tell us that it was a purely inconsequential Amendment. So far as I can see, it does nothing at all to alter the sense of the original drafting. I think that it was Dean Swift who said that the real benefactor of mankind was the man who made two blades of grass grow where only one grew before. This Amendment succeeds in planting thirteen words where there were only two words before. If it does anything to improve conditions in shops, offices and railway premises, I for one shall be delighted, but I shall also be exceedingly surprised.
Question put and agreed to.

Clause 29.—(CERTIFICATION OF PREMISES BY APPROPRIATE AUTHORITY.)
Lords Amendment: In page 19, line 40, leave out second "the" and insert "any such".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
This is a drafting Amendment. To please the hon. and learned Member for Derby, North (Mr. MacDermot), he will note that it makes one word into two.
Question put and agreed to.
Lords Amendment: In page 21, line 7, leave out paragraph (a) and insert:
"(a) specify the greatest number of persons who, in the opinion of the appropriate authority, can safely be employed to work at any one time in the premises".
Mr. Hare: I beg to move, That this House doth agree with the Lords in the said Amendment.
I think that it would be for the convenience of the House also to discuss the consequential Amendments in page 22, line 23, and in line 24.
These Amendments are designed to improve the procedure relating to fire certificates. Under Clause 29(5,a) as it left this House, a fire authority was required to specify in the fire certificate the number of employed persons stated in the application for the certificate as the greatest number employed to work at any one time in the premises, or proposed to be so employed. On reconsideration, the Government thought that it would be better if instead the fire authority specified in the fire certificate the greatest number of persons who, in the opinion of the authority, could safely be employed to work at any one time in the premises.
The amended procedure should prove helpful to both owners and occupiers on the one hand and to fire authorities on the other, without in any way reducing the protection for employed persons. Indeed, the specification of a maximum safe number should in fact improve protection. The occupier will know that with the given means of escape he can safely increase his staff to the number stated in the certificate without making a further application to the fire authority under Clause 30(3).
The fire authority will also be spared unnecessary paperwork and additional inspections of premises in cases where the occupiers have notified what is, in their view, a material increase in the numbers employed, but which does not make the means of escape insufficient. The new procedure should also help

1993
owners who will be responsible for fire precautions in buildings to which Clauses 42 and 43 apply.
The Amendments in lines 23 and 24 of page 22 are consequential.
Question put and agreed to.
Subsequent Lords Amendments agreed to.

Clause 30.—(MAINTENANCE OF MEANS OF ESCAPE IN CASE OF FIRE, AND INSPECTION BY APPROPRIATE AUTHORITY.)
Lords Amendment: In page 23, line 16, at end insert:
"(6) Where the appropriate authority are satisfied, with respect to any premises with respect to which a notice under subsection (3) of this section has been given to them, that the giving of effect to the proposals notified will not result in the means of escape from the premises in case of fire becoming insufficient, they shall, upon production of the fire certificate in force with respect to the premises, cause to be written on the certificate a statement that they are so satisfied".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
The next Amendment, in page 27, line 11, is consequential to this and might be discussed at the same time.
12.15 p.m.
Clause 30(4) provides that in cases where there is a change of conditions in any premises, or a proposed change of conditions, by reason of which the existing means of escape in the event of fire have become, or are likely to become, insufficient and the fire authority requires alterations to be made to the premises, the fire certificate shall be amended or a new one issued.
It was suggested in Committee by the hon. and learned Member for Derby, North (Mr. MacDermot) that the fire certificate should also be amended in cases where, notwithstanding the changes or proposed changes in conditions, the fire authority is satisfied that the means of escape are still sufficient. The Amendment we are discussing requires the fire authority to note the certificate in these circumstances. This modification of the procedure should keep fire certificates up to date and be generally helpful to owners and occupiers. I am grateful to the hon. and learned Member for
1994
Derby, North for bringing this matter to our attention.
Question put and agreed to.
Subsequent Lords Amendment agreed to.

Clause 42.—(PROVISIONS WITH RESPECT TO BUILDINGS IN SINGLE OWNERSHIP.)
Lords Amendment: In page 30, line 9, at end insert:
"(8) Section 22 of this Act (except so far as relating to operations or processes) shall, with the substitution for references to the occupier of the premises, of references to the owner of the building, have effect in relation to a common part of a building to which this section applies, and to machinery, plant, equipment and appliances used in such a part, as it has effect in relation to premises to which this Act applies, and to machinery, plant, equipment and appliances used in such premises.
(9) Where the occupier of premises comprised in a building in England or Wales to which this section applies is the defendant to a complaint made under section 22 of this Act with respect to the premises on the ground specified in subsecion (1)(a) or (b) of that section a copy of the summons issued in consequence of the making of the complaint together with a notice stating that he will be entitled to appear at the hearing of the complaint shall be served on the owner of the building in like manner as a summons falling to be served on him is required to be served and he shall, if he appears at the hearing, be deemed to be a defendant to the complaint; and the powers of the court under section 55(1) of the Magistrates' Courts Act 1952 shall be deemed to include power, whatever adjudication the court makes on the complaint, to order any of the parties to pay the whole or part of the costs of either or both of the others.
(10) Where the occupier of premises comprised in a building in Scotland to which this section applies is a defender in a summary application made under section 22 of this Act in respect of the premises on the ground specified in subsection (l)(a) or (b) of that section, a copy of the application together with notice of the place, date and time fixed for the hearing of it shall be served on the owner of the building and he shall thereafter be a party to the proceedings."
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
The object of the new subsection (8) is to enable the machinery of making a complaint under Clause 22—"Dangerous conditions and practices"—to be applied to the "common parts" of buildings to which Clause 42 applies. In other words, this Amendment would enable an

1995
authority to make a complaint to a magistrate's court about the dangerous conditions of, for example, a lift, stairway, or boiler in the "common parts", and references to the owner of the building are substituted for references to the occupier of the premises. The subsection limits the procedure to paragraphs (a) and (b) of Clause 22 since the operations and processes mentioned in paragraph (c) are carried on only in the premises and not in the "common parts".
The new subsection (9) provides that when a complaint is made by an enforcing authority under Clause 22 against the occupier of premises in a building to which Clause 42 applies, a copy of the summons shall be served on the owner of the building who may, if he wishes, appear at the court hearing. An owner will often have an interest in the matter which is the subject of the complaint and it is only reasonable that he should be given an opportunity to appear at the hearing if he so desires. This new subsection arises from a helpful suggestion made by my hon. Friend the Member for Crosby (Mr. Graham Page) when the Bill was in Committee.
Subsection (10) is a Scottish adaptation of the new provision in subsection (9).
Question put and agreed to.
Lords Amendment: In line 21, at end insert:
"and section 29(6) of this Act shall apply to the copy instead of to the certificate".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
There is an identical Amendment to Clause 43, page 32, line 48, and perhaps we can discuss them together.
Clause 29(6) requires a fire certificate issued with respect to any premises to be kept in the premises so long as it is in force. In the case of buildings to which Clause 42 or Clause 43 applies, however, the fire certificate has to be sent to the owner of a building or the owner of the part of a building in which the premises are situated, and a copy of the fire certificate has to be sent to the occupier of the premises concerned.
Generally speaking, the fire certificate itself will be kept by owners in their
1996
own offices which may often be at a distance from the building which inspectors will be visiting for the purpose of enforcing the Bill. It is therefore necessary to adapt the requirement in Clause 29(6) to provide that the copy of the fire certificate shall be kept in premises comprised in buildings to which Clauses 42 and 43 apply.
Mr. Graham Page: This is a recognition of a point which I made in Committee—that it was rather silly to put the original certificate in the premises which might be burned down and that it was far better to put a copy there and keep the certificate somewhere else. This principle has been recognised in the case of multiple occupation premises and I regret that there was not an Amendment which would allow a copy to be exhibited.
Question put and agreed to.
Lords Amendment: In page 30, line 23, after "applies" insert:
"of section 28 of this Act, for a contravention, in relation to such premises".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
It might be convenient to discuss at the same time an identical Amendment in Clause 43, page 33, line 2.
Mr. Speaker: If the House so pleases.
Mr. Whitelaw: Clause 28 requires all premises under the Bill to be provided with adequate means of escape in the event of fire. While the Clause is cast in general terms, its primary object is to require the provision of means of escape in premises not subject to the certification procedure in Clause 29. It is expected that there will be premises of this kind in buildings to which Clause 42 or Clause 43 applies, for example an office situated in a block of flats.
The purpose of the Amendments is simply to make it clear that the owners of Clause 42 or Clause 43 buildings are responsible for the provision of means of escape in respect of these premises, in much the same way as they are responsible for providing means of escape from premises subject to the certification procedure.
Question put and agreed to.

Clause 43.—(PROVISIONS WITH RESPECT TO BUILDINGS PLURALLY OWNED.)
Lords Amendment: In page 32, line 36, at end insert:
"(6) Section 22 of this Act (except so far as relating to operations or processes) shall, with the substitution, for references to the occupier of the premises, of references to the persons who, between them, own the building, have effect in relation to a common part of a building to which this section applies, and to machinery, plant, equipment and appliances used in such a part, as it has effect in relation to premises to which this Act applies, and to machinery, plant, equipment and appliances used in such premises.
(7) Where the occupier of premises comprised in a building in England or Wales to which this section applies is the defendant to a complaint made under section 22 of this Act with respect to the premises on the occupier of premises ground specified in subsection (1)(a) or (b) of that section a copy of the summons issued in consequence of the making of the complaint together with a notice stating that he will be entitled to appear at the hearing of the complaint shall be served on each of the persons who between them own the building in like manner as a summons falling to be served on him is required to be served and he shall, if he appears at the hearing, be deemed to be a defendant to the complaint; and the powers of the court under section 55(1) of the Magistrates' Courts Act 1952 shall be deemed to include power, whatever adjudication the court makes on the complaint, to order any of the parties to pay the whole or part of the costs of all or any of the others.
(8) Where the occupier of premises com prised in a building in Scotland to which this section applies is a defender in a summary application made under section 22 of this Act in respect of the premises on the ground specified in subsection (1)(a) or (b) of that section, a copy of the application together with notice of the place, date and time fixed for the hearing of it shall be served on each of the persons who between them own the building and they shall thereafter be parties to the proceedings".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment has the same purpose as those that I moved a few minutes ago to Clause 42.
Question put and agreed to.
Lords Amendment: In page 32, line 39, after "precautions" insert "(a)".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment paves the way for the Amendment in page 32, line 41, which the House may find convenient to discuss at the same time.
Mr. Speaker: If the House wishes, so be it.
Mr. Whitelaw: Clause 29(5) states that a fire certificate issued with respect to any premises shall be sent to the occupier of the premises. Clause 43(6)—in the form in which it left this House—provided that in the case of plurally owned buildings reference to the occupier of the premises in the provisions relating to fire precautions should be replaced by references to the persons who between them own the building. It is not, however, physically possible to send a fire certificate relating to a set of premises to all owners who between them own the building. The Amendments therefore provide that in the case of buildings to which Clause 43 applies the fire certificate shall be sent to the person who owns the part of the building in which the premises are situated.
Question put and agreed to.
Subsequent Lords Amendments agreed to.

Clause 45.—(POWER OF THE MINISTER TO GRANT EXEMPTIONS FROM CERTAIN REQUIREMENTS OF ACT.)
Lords Amendment: In page 34, line 26, leave out from "exempt" to first "in" in line 29 and insert:

"(a) from all or any of the requirements imposed by sections 5(2) and 6 of this Act, premises of any class or rooms of any class;

(b) from all or any of the requirements imposed by sections 9 and 10 of this Act, premises of any class".

Mr. Hare: I beg to move, That this House doth agree with the Lords in the said Amendment.
The purpose of this Amendment is to enable the Minister to exempt classes of rooms from the requirements of Clauses 5(2) and 6, which deal with space and temperature, by orders under Clause 45. The effect of the Amendment is to make the power of exemption more selective, since we think that there may well be classes of rooms—perhaps messengers' cubicles—which might reasonably be exempted, but where a general exemption for the whole premises from the space or temperature requirements would not be justified.
Mr. Prentice: The Amendment introduces a new type of exemption, in addition to those already in the Clause. I think my hon. Friends will agree that on the whole this is an improvement to a Clause which we have always thought was bad. We have been worried about the power of exemption which the Minister has in any case to exempt classes of premises in relation to the four Clauses of the Bill to which it refers.
This extra power to exempt rooms as well as premises might lead to the Government's intentions being interpreted in two ways. I hope the correct interpretation is that this will lead to fewer exemptions being granted overall, because if there is a type of room in certain premises which warrants it, it will be possible to exempt that room only, and the Act will apply to the rest of the premises and the employer will have to comply with the law. We would be unhappy if it were to mean that the number of total exemptions would be increased, because we feel that the exemption powers already in the Bill are somewhat dangerous and could be used to an unnecessary extent.
In relation to a previous Amendment I quoted a recent survey report, and perhaps I might refer to it again in connection with this Amendment. On the question of overcrowding—and I remind the House that the new power which the Minister is seeking deals with exemptions relating to either space or temperature—dealing with the point about space, the report says that out of 256 companies which they investigated a large number of them thought that it would be necessary to spend a good deal of money to comply with this Clause on overcrowding. It says that twelve of them considered that it would be necessary to spend over £1,000 to mitigate the problem of overcrowding, and that the problem to one firm was quite acute because it thought that it might cost £4,000 to £6,000 to provide additional accommodation for up to 40 employees.
I mention this because the Minister is going to be under some pressure to use this exemption power widely. He will be under pressure to use it to avoid firms being involved in heavy costs, and there will be a temptation for him to exempt premises where it might prove excep-
2000
tionally expensive or inconvenient for the employers to comply with the new law.
We take the view that the exemption power should be used only in exceptional circumstances, and that in general the type of firm to which I have referred ought not to be granted exemptions but should be made to comply with the law. They have been given plenty of grace under the Clause dealing with overcrowding, and this ought to be sufficient. I hope that the Minister has moved the Amendment in that spirit, and will operate it in that way.
Mr. Hare: If I might have the leave of the House to reply, the hon. Gentleman said that this would be interpreted in one of two ways, one favourable to his way of thinking, and one unfavourable. I give the assurance that it will be interpreted favourably to his way of thinking. The power of exemption will become more selective.
Question put and agreed to.

Clause 46.—(POWER OF AUTHORITIES WHO ENFORCE ACT TO GRANT EXEMPTIONS FROM CERTAIN REQUIREMENTS THEREOF.)
Lords Amendment: In page 35, line 12, leave out from "may" to "compliance" in line 14 and insert:

"(a) exempt the premises or any room therein from all or any of the requirements imposed by the said sections 5(2) and 6;

(b) exempt the premises from all or any of the requirement imposed by the said section 9;

if satisfied that, in the circumstances effecting the subject of the exemption".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
There are a number of other Amendments to this Clause, which are all consequential, and perhaps I might suggest that we take them together. They are the Amendments in page 35, line 23, in page 35, line 41, in page 36, line 15, in page 37, line 1, in page 37, line 13, in page 37, line 24, in page 27, line 40, in page 38, line 22, and in page 39, line 5.
Mr. Speaker: Yes, if the House so pleases.
Mr. Whitelaw: The purpose of this Amendment is to confer on enforcing authorities a power to exempt rooms in

2001
individual premises from the requirements of Clauses 5(2) and 6. It will enable inspectors to limit their exemptions in respect of space and temperature to the actual rooms where it is not reasonably practicable to comply with these requirements and to leave the rest of the premises concerned outside the exemption. This corresponds to the extension of the Minister's powers under Clause 45 to which the House has just agreed, and the same arguments apply.
Mr. Prentice: The Parliamentary Secretary says that the same arguments apply to this Amendment as to the earlier ones on exemptions. Our view is similar to the view I expressed when dealing with those Amendments, because again we hope that as little use as possible will be made of this exemption power.
I am grateful for the assurance given by the right hon. Gentleman on the point that I made previously. This Clause deals with the powers of enforcing authorities in making local exemptions. Therefore, while the Minister may have the best intentions—although we are not always sure about that—some local authorities may take a different view. I hope that the Minister will be very vigilant in respect of the use made by local enforcement authorities of this more selective power of exemption.
12.30 p.m.
In another part of the Bill it is laid down that these authorities will make reports to him, and this will enable his Department to compare the use made of all the powers in the Bill by various authorities throughout the country. I hope that the Minister will see that the selective power contained in this Amendment is used as he said he would use the wider power that he has under the previous Clause.
Question put and agreed to.
Subsequent Lords Amendments agreed to.
Lords Amendment: In page 35, line 44, after "made" insert "to the appropriate authority".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
Perhaps we could discuss at the same time the Amendment in page 39, line 11.
2002
Clause 46 deals with the power of enforcing authorities to grant exemptions to individual premises from certain requirements, and subsection (5) sets out part of the procedure for making application for an exemption certificate. The subsection states that the application should be made on a prescribed form, but does not specify to whom the form should be sent. The purpose of these Amendments is simply to identify the appropriate authority to whom the application form should be sent.
Question put and agreed to.
Subsequent Lords Amendments agreed to.

Clause 52.—(AUTHORITIES WHO ARE TO ENFORCE ACT.)
Lords Amendment: In page 42, line 42, at end insert:
"(d) premises comprised in premises used for the purposes of a school which, within the meaning of the Education Act 1944, is maintained by a local education authority".
Mr. Hare: I beg to move, That this House doth agree with the Lords in the said Amendment.
On further consideration the Government came to the conclusion that the arrangements for enforcement in Clause 52 would result in a confusing division of responsibility for enforcement in office and shop premises, in schools maintained under the Education Act. Subsection (3) provided that the Factory Inspectorate should enforce the Bill in premises occupied by a county council or local authority. This would have made factory inspectors responsible for enforcement in schools established and maintained by a county council or local authority—in other words, the county schools—and local authorities responsible for enforcements in other schools maintained by a county council or local authority—in other words, voluntary schools.
We thought that this division of responsibility was unsatisfactory, and the Amendment has the effect of providing that all maintained schools which form part of the public education system shall be inspected under the Bill by one enforcing authority rather than two—in other words, by the Factory Inspectorate.
This problem does not arise in Scotland, and a Scottish adaptation of the Amendment is therefore unnecessary.
Question put and agreed to.
Lords Amendment: In page 43, line 11, after "sections" insert "28".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
Perhaps it would be convenient at the same time to discuss the related Amendment to page 43, line 42, after "sections" insert "28".
Following suggestions from both sides of the House, Clause 28 was inserted in the Bill on Report. That Clause requires all premises to have such means of escape as are reasonable in their circumstances. The object of these Amendments is to provide for this Clause to be enforced by the fire authority in the premises specified in subsections (4) and (6) of Clause 52. These premises comprise offices and shops in factories and in other premises covered by the Factories Act, railway premises, including coal depots, owned by railway undertakings, and also certain offices occupied by them, and offices and shops in mines and quarries.
We think that this is a reasonable arrangement, because the fire authority is already responsible for inspecting the means of escape in these premises under Clauses 29 and 30, wherever the premises are subject to certification.
Question put and agreed to.
Lords Amendment: In page 43, line 15, leave out "purpose" and insert "purposes".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
The Amendment corrects a printing error. The hon. and learned Member for Derby, North (Mr. MacDermot) will be glad to know that it substitutes one word for one word.
Question put and agreed to.
Lords Amendment: In page 43, line 24, after "applies" insert:
"but not including such a building or part of a building as, by virtue of those provisions, is excluded from the said section 125(1)".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
The Amendment was made in order to provide that wholesale warehouses would be inspected under the Bill by local
2004
authorities and not by the Factory Inspectorate. The House has already agreed to an Amendment made in another place to Clause1, extending the definition of warehouses under the Bill, and we have discussed the Amendment that it is proposed to make to Clause 73 removing certain warehouses covered by the Factories Act from the scope of that Act so that they can be dealt with under the Bill.
We do not think that it is logical, however, to leave the enforcement of the Bill in this limited group of warehouses to the Factory Inspectorate, and the Amendment has the effect of bringing responsibility for enforcement in such premises into line with the general pattern set out in the Bill.
Question put and agreed to.
Lords Amendment: In page 43, line 24, leave out from words last inserted to end of line 29 and insert:
"(d) railway premises;
(e) office premises occupied by railway undertakers for the purposes of the railway undertaking carried on by them and situate in the immediate vicinity of the permanent way (not being office premises comprised in hotels); and
(f) fuel storage premises owned by railway undertakers".
Mr. Hare: I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment was made in order to provide that enforcement of the Bill in fuel storage premises on land owned by the railways should be carried out by the Factory Inspectorate. We think that this is a good arrangement, which should make for economy in administration, because factory inspectors will be enforcing the Bill generally in railway premises and will therefore be visiting the areas in which these railway coal depots are situated.
Question put and agreed to.
Subsequent Lords Amendment agreed to.

New Clause.—(PROTECTION FOR LOCAL AUTHORITIES' INSPECTORS.)
Lords Amendment: In page 48, line 22, at end insert new Clause "A":
"A.—(1) An inspector appointed under section 52(1) or (5) of this Act shall not be personally liable in respect of any act done by him in the execution or purported execution of

2005
this Act and within the scope of his employment, if he did that act in the honest belief that his duty under this Act required or entitled him to do it:
Provided that nothing in this subsection shall be construed as relieving an authority by whom an inspector is so appointed from any liability in respect of acts of their officers.
(2) Where an action has been brought against such an inspector in respect of an act done by him in the execution or purported execution of this Act and the circumstances are such that he is not legally entitled to require the authority by whom he was appointed to indemnify him, the authority may, nevertheless, indemnify him against the whole or part of any damages and costs or expenses which he may have been ordered to pay or may have incurred, if they are satisfied that he honestly believed that the act complained of had been within the scope of his employment and that his duty under this Act required or entitled him to do it."
Read a Second time.
Mr. MacDermot: I beg to move, as an Amendment to the Lords Amendment, in line 1, to leave out subsection (1).
Perhaps it would be convenient to discuss, at the same time, my second Amendment, in subsection (2) to leave out "such an inspector" and to insert:
"an inspector appointed under section 52(1) or (5) of this Act".
That is consequential.
Mr. Speaker: If the House so agrees.
Mr. MacDermot: I wish to express some slight reluctance in moving the Amendment, solely for the reason that the new Clause was moved by one of my noble Friends, Lord Shepherd, in another place, and anyone who has read the reports of the debates on this Bill in another place will be conscious of the careful and valuable contributions made by Lord Shepherd to the consideration of the whole Bill.
I know that he moved the new Clause solely with the intention of trying to assist the local government inspectors in what is obviously going to be a difficult task, especially in the early stages of enforcement. But I am moved to propose the Amendments because it seems to me that the new Clause raises an important question of constitutional principle which the House should consider.
The House will remember that nearly all the enforcement under this Bill will be done by local authority inspectors. What the new Clause proposes, as it
2006
stands, is two things. First, in subsection (1) it proposes that those local authority inspectors shall be exempted from any kind of personal liability in the courts in respect of any act done by them in the execution or purported execution of their duties under the Act provided that they act within the scope of their employment and did so in the honest belief that they were either required or entitled to do the act complained of. That, broadly speaking, is what subsection (1) would do.
Subsection (2) provides an additional and, in my belief, useful protection for the inspectors. It provides that where in perfectly good faith a local government inspector has, in fact, exceeded his authority and acted outside the scope of his authority so as to render himself liable for an action, perhaps for damages, the local authority would have the power—would not be obliged to do so—to indemnify him if it is satisfied that he was acting in perfectly good faith and thinking that he was acting within the scope of his employment and, again, doing something which he was required or entitled to do.
I would not wish to interfere with the second subsection, and my Amendment would preserve it. But it is the first subsection which, in my submission, raises important questions of principle. I suppose that all of us who have studied the law, and, indeed, most hon. Members, whether they have studied it or not, will remember reading with pleasure the great work on The Law of the Constitution by Professor Dicey. In that work he singled out two distinguishing features which he said throughout our history have been the cardinal principles of our constitution. They are the sovereignty of Parliament and the rule of law.
I suppose that it is particularly upon us as Members of Parliament to sea that we do not abuse the first of those principles, the sovereignty of Parliament, by whittling away the rule of law. As defined by Professor Dicey the rule of law had, of course, three separate meanings, and the second of those was the principle of equality before the law. I do not think I can do better than to read his own words which will be, I am sure, familiar to many hon. Members. He says:
"We mean in the second place, when we speak of the 'rule of law' as a characteristic

2007
of our country, not only that with us no man is above the law but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person."
He then goes on to compare unfavourably the constitutions of other civilised societies with our own for the reason that they do not have enshrined in their constitutions this principle of equality before the law.
12.45 p.m.
In my submission, subsection (1) as it stands is an undoubted infringement of that great principle. We all know that in modern legislation there has been a very great increase in the number of inspectors, either Government or local government inspectors, who have powers which do result in some infringement of the liberties of the individual which are necessary for the greater common good. They are sometimes scathingly referred to as "snoopers". But it seems to me, however necessary it is for us to create inspectors of this kind and to give them such powers, that in discharging those powers they should remain answerable to the courts for their actions in exactly the same way as every other citizen. They should not form a specially privileged class outside the law.
I do not wish, of course, to see local government inspectors being personally ruined by an action for damages brought against them for something which they have done in good faith. Nor do I want to see them fear to exercise their powers courageously and impartially lest they shall bring upon themselves an action for damages. Of course not. But there is no question of anything of that kind arising because the universal practice
2008
today of all local authorities is to take out insurance policies which effect protection for all their officials, and any official who is acting within the scope of his employment would, of course, be entitled to the cover and protection of such an insurance policy. So he is not, in that sense, personally at risk in the pecuniary sense.
However, that is no reason for saying that he should not remain personally liable in the sense that he shall be personally answerable in the courts for his actions and that they can be tested and probed in exactly the same way as the actions of any other citizens. Of course, the one case where he would not be protected by the insurance policy would be where he had acted outside the scope of his employment, and that is why, it seems to me, subsection (2) is so valuable. It enables the local authority in those cases to give the indemnity which the insurance policy would not give to that man.
I should make clear that my noble Friend Lord Shepherd is in no sense responsible for the drafting of this new Clause. I think he said in another place that he had taken it bodily from the ill-fated Shops Bill which this present Bill now replaces. I regret to have to inform the House that there are a number of older and, as I believe, disreputable precedents for this Clause.
Following up a hint dropped to me by the Parliamentary Secretary, I have been making certain researches. The passage which I read a moment ago from Dicey first, I think, saw the light of day in 1885. Ten years before that, in 1875, this great principle in our Constitution which he enunciated had already been breached—breached in Section 265 of the Public Health Act, 1875.
That Act provided that all local authority officers would be exempted from personal liability for anything they had done bona fide for the purpose of executing that act. Whether it was the result of Dicey's work or not, I do not know, but I have been unable to find any repetition of this undesirable precedent until the year 1936, when in Section 305 of the Public Health Act of that year the Section of the 1885 Act was applied again. Then, I am afraid, the precedents follow in more rapid succession.

2009
In 1938, the principle was extended to the Food and Drugs Act, in Section 94, and I think that that is where the wording of the present Clause is to be found. In the last days, I regret to say, of the Labour Government in 1951 they passed an Act called the New Streets Act, which by Section 8 again applied that provision. I mention that to show that no party is in a position to stand in a white sheet of innocence in this matter. In Section 128 of the Food and Drugs Act, 1955, again there was a repetition of the 1938 Act provision and finally, as recently as 1961, in Section 81 of the Public Health Act, we find a further application of the provision of the 1875 Act.
There may be other examples in this dismal story, but these were the only examples which I have been able to find. I draw little comfort from the fact that I was not a Member of the House when any of those Bills were passed. Unless I happened to be in the Committee on those occasions it is exceedingly unlikely that I should have had sufficient vigilance to spot them then. Bad precedents do not by repetition become good precedents. In spite of these precedents, it is a wrong principle to exempt any kind of public official from personal liability for his acts.
May I inform the House that I understand that my noble Friend Lord Shepherd has been approached about this matter and that if the House sees fit to accept the Amendments which I have proposed, he will be willing to recommend their acceptance in another place.
I suggest to the House that the time has come to stop the rot and that we should not again automatically re-enact these provisions, which I think constitute a stain on our Statute Book. Perhaps we can find the opportunity on another occasion, if the House agrees with me to amend all these provisions to which I have referred, but in the meantime I beg the House to look carefully at this matter and, if they agree to accept these Amendments, to enable Professor Dicey to rest more peacefully in his grave.
Mr. Graham Page: I rise to support the hon. and learned Member for Derby, North (Mr. MacDermot) in the Amendment which he has moved to the Lords Amendment. I was unaware that there were so many precedents in support of
2010
this subsection of the Lords Amendment, and I was surprised to hear that there were. I have always thought that it was a major principle of our law that neither the constable nor the collector of taxes should be relieved of his personal liability for the act which he does, and I think that it is totally wrong that, in sympathy with the official in this case, the inspector, in his difficulties in carrying out his work, we should cause a further breach of such a major principle of our law.
I hope that my right hon. Friend will see fit to accept the Amendment to the Lords Amendment, because we do not want to go further with the breaches which the hon. and learned Gentleman has already mentioned of this principle of law. It would be quite wrong for the House to accept this subsection of the Lords Amendment as it stands.
Mr. Prentice: I congratulate my hon. and learned Friend the Member for Derby, North (Mr. MacDermot) upon his initative in this matter. Perhaps I may add that the Bill as it stands has already been improved at earlier stages by a number of his initiatives and that it would have been improved further still if the Government had accepted all the Amendments which he suggested. Certainly at the eleventh hour he is rescuing the Government from making rather a bad blunder, I say that in anticipation that the Amendment will be accepted by the Minister.
It is true that there are all these precedents. It is true that in another place Lord Shepherd moved this Amendment. He did it—as many of us move Amendments in Committee—seeing what appears at first glance to a layman to be a reasonable idea contained in similar legislation. We put down Amendments expecting the Government to give them more study in depth than a back-bench Member in either House can give Lord Shepherd's motive was to give proper protection to the inspector in the course of his duties in order to make sure that proper enforcement of the provisions of the Bill would take place. I suggest that the Government did not do their homework as they should have done. I realise that there are precedents, including at least one from the Labour Government, but I feel that this should not have taken them quite by surprise in this way.

2011
The Amendment moved by Lord Shepherd in another place was accepted by Lord Carrington for the Government in a speech which occupied only four lines of the OFFICIAL REPORT of the House of Lords. It is clear that the implications were not clearly thought out. Perhaps the look of blank incomprehension which was on the faces of all the distinguished occupants of the Treasury Bench when my hon. and learned Friend talked about Professor Dicey was a symptom of the Government's lack of preparedness in these matters.
The House owes a debt to my hon. and learned Friend—and I say that in all sincerity, and I hope that the Minister agrees. I hope that he will accept the Amendment and that the Queen's Speech in the new Session will contain Amendments to all the other Measures on the Statute Book to which my hon. and learned Friend referred.
Mr. Hare: I think that the hon. Member for East Ham, North (Mr. Prentice) recognises that his last expression of hope was rather optimistic.
I listened with the greatest possible care, as I always do, to the hon. and learned Member for Derby, South (Mr. MacDermot). He pointed out that this Amendment was moved by a noble Lord in another place who, I think, moved the Amendment with the perfectly honest and proper intention of trying to do as well as he could to protect the local authority inspector in the course of his duty. As has been pointed out by the hon. and learned Member and others, there are plenty of precedents for this.
I was glad that the hon. and learned Member made it absolutely clear from the start of his speech that he accepts, as I think we all do, the desirability of the provision in subsection (2). He said that this affords useful protection to the official concerned. He welcomed the subsection, and in fact his Amendment signifies that.
It enables the enforcing authorities to indemnify inspectors who may be sued for damages in respect of an act done by them which they honestly believed to be in the execution or purported execution of the Bill but which were in fact outside the scope of their employment. On that, I am glad to say, we are all agreed.
I have very great sympathy with what the hon. and learned Gentleman said.
2012
Equality before the law is, I think, a precious right, and it is perhaps a pity that this principle has been damaged in legislation by all parties in the House. Having taken further legal advice on the provisions of subsection (1), I should like to accept the hon. and learned Gentleman's Amendment. I understand that it would be better in principle to leave local authority and L.C.C. inspectors as being liable for their tortious acts in justice in the same way as inspectors under the Factories Acts. The hon. and learned Member made a strong case, and it is acceptable.
In view of the expressions of opinion put forward by the hon. and learned Member by my hon. Friend the Member for Crosby (Mr. Graham Page) and the hon. Member for East Ham, North (Mr. Prentice), I advise the House to accept the Amendment.
Amendment to the Lords Amendment agreed to.
Subsequent Amendment to the Lords Amendment agreed to.
Lords Amendment, as amended, agreed to [Special Entry.]

Clause 58.—(RESTRICTION OF DISCLOSURE OF INFORMATION.)
Lords Amendment: In page 48, line 24, leave out from "any" to end of line 26 and insert:
"legal proceedings, including arbitrations".
1.0 p.m.
Mr. Hare: I beg to move, That this House doth agree with the Lords in the said Amendment.
When this House discussed this Clause, both in Committee and on Report, it was argued on both sides that the restriction imposed by Clause 58 on inspectors concerning the disclosure of information in civil proceedings not pursuant to the Bill, might work unfairly; for example, it would not have allowed an inspector to give evidence in personal injury cases not involving a breach of statutory duty even though he had investigated the cause of the accident. This restriction might have worked to the disadvantage of either the employer or employee.
When the Clause was under discussion in another place, it was argued again from both sides that Clause 58 should be amended to allow an inspector to disclose

2013
information in civil proceedings not pursuant to the Bill. The Amendment we are discussing has that effect. It is just possible that inspectors might get involved in purely private civil actions as a result of this Amendment, but we think this is unlikely, and, in view of the expression of opinion by both Houses, we think that the decision to put down this Amendment was right.
Mr. Graham Page: It is most gratifying that the arguments put in this House so strongly have now found their way into the Bill. We failed in this House in convincing my right hon. Friend that it was right not to restrict the disclosure of facts or documents merely to civil proceedings pursuant to the Act. By this Amendment the power of disclosure is widened and the inspector can be called upon to disclose facts and documents in any civil proceedings and also in any criminal proceedings or any arbitration. I am sure that this is right. I am very glad that the arguments have now prevailed in favour of it.
Question put and agreed to.
Subsequent Lords Amendments agreed to.

Clause 69.—(PROSECUTION OF OFFENCES.)

  New Clause "B".—(LOCAL AUTHORITIES' INSPECTORS IN SCOTLAND TO HAVE POWER TO INSTITUTE PROCEEDINGS IN CERTAIN CASES.)
  Lords Amendment: In page 53, line 5, at end insert new Clause "B":
  "B.—(1) An inspector appointed under this Act by a local authority may, if duly authorised in that behalf by a general resolution of the authority, make a summary application under section 22 of this Act with respect to any premises with respect to which the authority have power to enforce any of the provisions of sections 4 to 21 of this Act; and for the purposes of this subsection the expression 'premises' includes a common part of a building to which section 42 or section 43 of this Act applies.
  (2) An inspector appointed under this Act by the authority discharging in any area the functions of fire authority under the Fire Services Act 1947 may, if duly authorised as aforesaid by the authority, make a summary application under section 32 of this Act with respect to any premises in that area with respect to which they are the appropriate authority for the purposes of that section."
  Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
  2014
  Under Clause 22 of the Bill an enforcing authority can make a complaint to a magistrates' court, or in Scotland a summary application to a sheriff, in respect of dangerous conditions and practices in premises. There is a similar procedure under Clause 32 as regards means of escape in the case of fire. Circumstances may be such that action under these provisions should be taken without delay. It has been suggested, however, that it might be necessary for a local authority inspector to submit a particular case to the next meeting of a council or committee to obtain authority to take proceedings under these Clauses, and, of course, there would be an inevitable lapse of time before a complaint or summary application could be made.
  I have carefully looked into this suggestion and I am satisfied that in England and Wales powers exist in the Local Government Act, 1933, and the London Government Act, 1939, which enable a local authority to authorise one of its officers to exercise discretion for the purpose of instituting proceedings under Clause 22 or Clause 32 in a particular case. But so far as Scotland is concerned, I do not believe that the provisions of the Local Government (Scotland) Act, 1947, are sufficient for this purpose. For that reason the Government tabled this new Clause, which will give similar powers to Scottish local authorities.
  Question put and agreed to.
  Subsequent Lords Amendment agreed to.

Clause 81.—(APPLICATION TO THE CROWN.)
Lords Amendment: In page 58, line 27, leave out "(5)" and insert "(6)".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
It might be convenient to discuss, at the same time, the four succeeding Amendments.
All these Amendments to Clause 81 are consequential on the addition of subsection (6) to Clause 6, which the House has already agreed.
Question put and agreed to.
Subsequent Lords Amendments agreed to.
Lords Amendment: In page 59, line 3, leave out from "onwards" to end of line 5 and insert:
"and subsections (5) to (14) had been omitted; and an exemption of, or of a room in, any such premises from a requirement imposed by a provision of this Act may be granted under the said section 46 despite the fact that the provision imposing the requirement is not in force in relation to the premises".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
Subsection (4) of Clause 81 adapts the provisions of Clause 46—power of authorities to grant exemptions in respect of individual premises—to Clause 81, which deals with the application of the Bill to the Crown. This Amendment is merely consequential on the inclusion of the new subsection (14) in Clause 46 which we discussed at an earlier stage.
Question put and agreed to.

Clause 83.—(EXCLUSION OF APPLICATION TO FACTORIES AND TO PARTS BELOW GROUND OF MINES.)
Lords Amendment: In page 59, line 43, at beginning insert:
"With the exception of 73(3) of this Act".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
When subsection (3) was added to Clause 73 a conflict arose between that subsection and Clause 83(2). The provision in Clause 73(3) removes from the scope of the Factories Act certain wholesale warehouses so that they may be dealt with under this Bill. If, however, there are any cases where fish is sold wholesale in such warehouses the wording of Clause 83(2) would have prevented the application of Clause 73(3) to them and in consequence such warehouses would have been left under the Factories Act. This Amendment, a drafting Amendment, is designed to remove this conflict.
Question put and agreed to.

Clause 84.—(EXCLUSION OF APPLICATION TO PREMISES OCCUPIED FOR TRANSITORY PURPOSES.)
Lords Amendment: In page 60, line 17, at end insert:
"(2) The foregoing subsection shall not apply to a prosecution for an offence consisting in a failure to comply with an obligation imposed under section 49(1) of this Act to
2016
notify the appropriate authority that persons would be employed to work in any premises; but in any such prosecution it shall be a defence to prove that the persons in question were employed to work in the premises while they were occupied as mentioned in the foregoing subsection,".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
The provisions of Clause 84 which relate to premises occupied for transitory purposes did not provide in the form in which it left this House a defence against an offence committed under subsection (1) of Clause 49. This is because Clause 49(1) requires an employer to register the proposed employment of persons in office, shop or railway premises before he begins to employ them. In the case of such an offence it would not be possible to prove, as required by Clause 84, that at the time of the alleged contravention the premises were occupied for a temporary purpose during a period beginning with the first day of occupation and ending six months or six weeks later as the case may be.
The new subsection contained in this Amendment adapts Clause 84 to the requirements of Clause 49 with the result that an occupier would have a defence against failing to register the employment of persons whom he proposed to employ in the premises for the purpose lasting less than six months or six weeks as the case may be.
Question put and agreed to.

Clause 88.—(INTERPRETATION.)
Lords Amendment: In page 63, leave out lines 3 and 4.
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment deletes the definition of "young persons" from Clause 88, since it has now been inserted into Clause 18 by an earlier Amendment to which the House has agreed.
Question put and agreed to.
Lords Amendment: In page 63, line 26, leave out from "Act" to end of line 27 and insert:
"any such person as follows shall be taken to be employed, namely,—

(a) a person appointed under section 6 or 7 of the Registration Service Act 1953 who exercises and performs his powers and duties in premises provided and maintained

2017
by the council within whose area his district or sub-district is situate;

(b) a person elected under section 8 of the Registration of Births, Deaths and Marriages (Scotland) Act 1854 who exercises his functions in premises provided and maintained by a local authority;

(c) a member of a police force maintained by a police authority".

Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
The purpose of this Amendment is to extend the protection of this Bill to persons familiarly known as registrars of births, deaths and marriages. Hon. Members who served on the Standing Committee which considered this Bill may recall that the position of registrars in relation to this Bill was raised by the hon. Member for Lewisham, South (Mr. C. Johnson) and I then undertook to examine the matter further.
While staff employed by local authorities are covered by this Bill, superintendent registrars and registrars are not employed under a contract of service and they are not covered by the definition of "employed" in Clause 88(1). This Amendment deems those registrars who perform their duties in premises provided and maintained by a county council or local authority to be "employed" for the purposes of this Bill, and so has the effect of bringing them into its scope. The reference in the Amendment to
"a member of a police force maintained by a police authority"
is merely consequential on the way in which Clause 88(4) has been redrafted and does not make any change in the application of the Bill to the police.
Mr. Prentice: This Amendment meets a point which was raised by my hon. Friend the Member for Lewisham, South (Mr. C. Johnson), who is unable to be present. I wish to thank the Govern-
2018
ment for accepting the Amendment. In passing, may I say that this is an example of the many Amendments designed to improve the Bill which have resulted from the vigilance of my hon. Friends, and for that the Government should be grateful.
If I am not too much out of order in doing so, may I congratulate the Parliamentary Secretary and the Minister on the way in which they have gone through all the Amendments without once losing their place; and may I also congratulate Mr. Deputy-Speaker and Mr. Speaker on not having lost their places, either.
Question put and agreed to.
Lords Amendment: In page 63, line 28, after "premises" insert "rooms".
Mr. Whitelaw: I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment is consequential on the decision to give power to grant exemptions in respect of classes of rooms as well as classes of premises. The House has already agreed to the main Amendment which affected Clause 45. The effect of the present Amendment is to provide that the definition of a class of rooms may be framed by reference to any circumstances whatever.
Question put and agreed to.

LAND COMPENSATION (SCOTLAND) BILL [Lords]
Read a Second time.
Bill committed to a Committee of the whole House.—[Mr. MacArthur.]
Committee upon Monday next.

ANIMAL BOARDING ESTABLISHMENTS BILL
Lords Amendments considered and agreed to.

PERFORMERS' PROTECTION BILL [Lords]
Order read for resuming adjourned debate on Question [21st June], That the Bill be now read the Third time.
Question again proposed.
1.17 p.m.
Dr. Barnett Stross: When the House adjourned on 21st June we had not completed our debate on this most interesting and, I think desirable small Bill. I am quite certain that we do not require much time today in order to complete the Third Reading debate.
The Bill was sponsored in this House by the hon. Member for Buckinghamshire, South (Mr. Ronald Bell) and we had a brief but interesting Committee stage, when no Amendments were made. The hon. Member for Buckinghamshire, South hopes that the House will accept his apologies for his absence today. It is most unfortunate that he cannot be present. He has asked me to see the Measure through and the fact that he has asked me to do so proves that this is no party matter and that there is nothing contentious about this Bill.
On 21st June, the hon. Member for Buckinghamshire, South explained the substance of the Bill quite clearly. All hon. Members interested in copyright matters will have noted that the noble Lord, Lord Mancroft, gave a most learned and interesting description in another place of what is entailed by this Measure. In 1956,when we were discussing the Committee stage of the Bill which became the Copyright Act, we touched on the fringe of this matter. But we forgot, or we certainly omitted to give, the kind of protection which is now afforded by this small Bill. The protection is extended so that the definition of people needing protection when the word "author" is used includes the performer of a work as well as the creator.
The Copyright Act of 1956 and the consolidated Measure of 1958, The Dramatic and Musical Performers' Protection Act, if taken together, put Britain completely in the van regarding copyright law. The example which we provided then has been followed by at
2020
least 24 other countries which have amended their copyright law to fit in with what was legislated in this House in 1956. This small Bill is required in order to allow the Government to ratify the international convention and it is only on this very narrow issue that we need enlarge our own law. All the other signatories have gone a very long way indeed to meet the position that we set out and the example that we set the world in general.
That being so, I need say no more. On my left is my hon. Friend the Member for Rotherham (Mr. O'Malley), who has a personal interest in matters of this type as a one-time performer. Now that he is in the House his performance may be of a different nature, without any copyright attached. I hope that we shall have no further difficulty today and that the Bill will receive its Third Reading expeditiously.
1.20 p.m.
Mr. Brian O'Malley: I, too, support the Bill and sincerely hope that it receives its Third Reading today. In the interests of hon. Members who have other matters on the Order Paper, I shall speak briefly. There is little more to be said than was said by my hon. Friend the Member for Stoke-on-Trent, Central (Dr. Stross). The purpose of the Bill was explained by the hon. Member for Buckinghamshire, South (Mr. Ronald Bell) in the House on 21st June and in Standing Committee on 19th June. It is not a party political Measure. I believe that it is a Measure on which there can be little contention or difference in the House.
I stress that the Bill as it stands makes only very slight amendments to the existing law. The purpose of the Bill is to ratify the international Convention made in Rome in 1961. The Convention arose from the collaboration between various inter-governmental organizations seeking something which they had wanted for about thirty years. Other countries when considering whether they will ratify the Convention will in many cases require considerable changes and amendments to the law, whereas we are in the fortunate position that the Convention, if ratified, will in the main bring the law of countries ratifying the Convention into line with the law as it already exists here.

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Article 32 of the Convention provides for the setting up of an inter-governmental committee to deal with the application and operation of the Convention and to prepare for any possible revision at any time in the future. I regard it as particularly important that this country should be represented at an early stage on this inter-governmental committee. I understand that a number of African States are to have a conference at Brazzaville in August of this year to consider the question of ratification. I suggest, with all respect, that, since the African States have less experience of the operation of protection and copyright laws, it would be unfortunate, both for this country and for performers throughout the world, if a number of States with little experience of this matter were represented but this country were not.
Therefore, it is important that the Bill should receive its Third Reading this afternoon so that this country may be represented on the inter-governmental committee at an early stage, in the hope that other countries will follow. I cite as an example the possibility that the Republic of Ireland will follow. I understand that this is likely. This country has led many Continental and other countries in protection and copyright.
The Bill does little to the existing law. The international trade union organisations of performers have been fully consulted and have taken part in all conferences leading to the adoption of the Convention. In Great Britain the Musicians' Union, the Actors' Equity Association, and the Variety Artistes' Federation have similarly been consulted and all have participated. The House can, therefore, have every confidence that all the people concerned with this kind of performance earnestly hope that the Bill will be adopted.
The Bill gives only very modest protection, precisely because of its limited object, which is the ratification of the international Convention. There are many problems which have arisen for performers in recent years with which the Bill does not deal. In the public interest, these problems must be dealt with at some time. One example is that, with the increasing tendency to use recorded music instead of live performers, it may be difficult to maintain a music profession large enough to ensure the emergence of suffi-
2022
cient performers of the highest standard. These problems cannot be dealt with in the Bill. They require treatment in a different way and at another time. I hope that on some future occasion when it will be possible to introduce broader Measures these problems will receive sympathetic consideration.
1.26 p.m.
The Parliamentary Secretary to the Board of Trade (Mr. David Price): I congratulate my hon. Friend the Member for Buckinghamshire, South (Mr. Ronald Bell), who, as the hon. Member for Stoke-on-Trent, Central (Dr. Stross) said, cannot be with us today, on having brought the Bill successfully to its Third Reading. I congratulate the hon. Member for Stoke-on-Trent, Central on piloting the Bill today.
As the Bill received its Second Reading without discussion, it may be convenient to the House if I say a few words on the Government's attitude to the Bill. I can say it in eight words; we are strongly in favour of the Bill. I can assure the hon. Member for Rotherham (Mr. O'Malley), to whom we listened with interest, that it is our intention to deposit our instrument of ratification of the Convention with the Secretary-General of the United Nations as soon as the Bill has received the Royal Assent.
Question put and agreed to.
Bill read the Third time and passed, without Amendment.

LIMITATION BILL
Lords Amendments considered.
Consideration of Lords Amendment in the Title, line 11, postponed till after the consideration of subsequent Amendments.—[Mr. Buck.]

Clause 2.—(APPLICATION FOR LEAVE OF COURT.)
Lords Amendment: In page 2, line 34, at end insert:
"in relation to applications which are made after the commencement of a relevant action".
1.27 p.m.
Mr. Antony Buck: I beg to move. That this House doth agree with the Lords in the said Amendment.

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It has been all along the intention that a plaintiff who intends to take advantage of the Bill by bringing an action which, save for the Bill, would have been Statute-barred by the effluxion of time shall have first to make an application to the court which is ex parte. That is what is intended in the Bill.
It was considered that in the very exceptional case where the issue of limitation arose in the course of a trial it would be absurd that there should have to be an adjournment for the filing of an affidavit and the making of an ex parte application. It is for that reason that Clause 2 was drafted to provide that the application shall be made ex parte, except in so far as the rules of court may otherwise provide. In another place concern was expressed that this gave too great a latitude and could provide for rules to be made that in all cases the application should be dealt with other than by an ex parte application. Their Lordships' Amendment tidies the matter up and makes it clear that the application shall always be exparte save when the issue of limitation arises in the course of the trial.
1.30 p.m.
Mr. A. J. Irvine: We on this side welcome the Amendment. Our concern has always been that an intending plaintiff in applying for leave under Clause 1 should be as untrammelled as possible. I conceive that it was thought in another place that, under the wording of the Bill as it left this House, even before the issue of the writ, there might be the danger of an applicant being required to give notice to somebody or other as a result of rules to be made. It is a little difficult, perhaps, to know how far this was a well founded anxiety because surely it would be a very curious situation if notices were required to be given to intended defendants. However, it is quite true that the language of the Bill as it left this House was wide.
I understand that the Amendment makes it possible for rules to require applications to give notice when the application is made during a trial or at any time after the issue of the writ. I can see that there is good sense in that. When the defendant is identified and is a party to an action, it is probably best,
2024
if this matter than arises, that an application be made with notice so that all those concerned know what is going on. Those of us who regard this as an extremely useful and valuable Bill think that this Amendment is an improvement.
Question put and agreed to.

Clause 4.—(TIME-LIMIT FOR CLAIMING CONTRIBUTION BETWEEN TORTFEASORS.)
Lords Amendment: In page 4, line 40, after "shall" insert:
"(subject to subsection (3) of this section)".
Mr. Buck: I beg to move, That this House doth agree with the Lords in the said Amendment.
This is a paving Amendment to Amendments which come hereafter.
Question put and agreed to.
Lords Amendment: In page 5, line 1, leave out from "if" to end of line 5 and insert:
"the tortfeasor is held liable in respect of that damage by a judgment given in any civil proceedings, or an award made on any arbitration, the revelant date shall be the date on which the judgment is given, or the date of the award, as the case may be;
(b) if, in any case not falling within the preceding paragraph, the tortfeasor".
Mr. Buck: I beg to move, That this House doth agree with the Lords in the said Amendment.
The Amendment provides that the benefit conferred by the Bill should extend not only to High Court and county court actions but also to arbitrations. I think that all hon. Members will agree that it is appropriate that the benefit conferred by the Bill should be extended to this wider range of proceedings.
Question put and agreed to.
Subsequent Lords Amendment agreed to.
Lords Amendment: In page 5, line 14, at end insert:
"(3) Sections 22(1) and 26 of the Limitation Act 1939 (which make provision for cases of disability, fraud and mistake) shall each have effect as if any reference therein to that Act included a reference to subsection (1) of this section, and section 2(1) of the Limitation (Enemies and War Prisoners) Act 1945 shall be amended by adding at the end of the definition of 'statute of limitation' the words 'subsection (1) of section four of the Limitation Act 1963':
Provided that the said section 22(1) shall not apply to any action by virtue of this subsection unless the plaintiff proves that the

2025
person under the disability was not, at the time when the right to recover contribution accrued to him, in the custody of a parent, and, where it so applies, shall have effect as if for the words 'six years' there were substituted the words 'two years'."
Mr. Buck: I beg to move, That this House doth agree with the Lords in the said Amendment.
Clause 4 takes the opportunity to tidy up the question of contribution between joint tortfeasors and lays down clearly that there shall be a period of two years from the date of judgment in the normal case or from the date of the settlement of the action. The Amendment provides that this benefit shall come on top of an exemption which may have been conferred by the Limitation (Enemies and War Prisoners) Act and other Acts set out in the Amendment. The Amendment extends the provisions of the Bill relative to joint tortfeasors in a way which, I think, will be useful to the law generally.
Question put and agreed to.
Subsequent Lords Amendment agreed to.

Clause 10.—(TIME-LIMIT FOR CLAIMING CONTRIBUTION BETWEEN WRONGDOERS.)
Lords Amendment: In page 9, line 42, at end insert:
"(2) Section 6(2) of the Law Reform (Limitation of Actions, etc.) Act 1954 (which modifies the time limit of three years for bringing an action in the case of persons under legal disability) shall have effect as if any reference therein to subsection (1) of that section included a reference to subsection (1) of this section:
Provided that in relation to any action to which the said section 6(2) applies by virtue of this subsection it shall have effect as if for the words 'three years' therein there were substituted the words 'two years'.
(3) The preceding provisions of this section, and the provisions of section 6(2) of the said Act of 1954 as extended by the last preceding subsection, shall have effect in relation to an arbitration to recover from a carrier a contribution in respect of damages to which Article 29 in Schedule 1 to the Carriage by Air Act 1961 applies, as they have effect in relation to an action for that purpose."
Mr. Buck: I beg to move. That this House doth agree with the Lords in the said Amendment.
The Amendment concerns that part of the Bill which deals with the law of
2026
Scotland. It brings the law of Scotland on the limitation of actions within the ambit of what we are dealing with in a way considered desirable by Scottish lawyers and by hon. Members who have the advantage of representing Scottish constituencies. It corresponds with the Amendment made in the English part of the Bill in Clause 4.
Question put and agreed to.
Subsequent Lords Amendment agreed to.
Lords Amendment: In page 10, line 21, at end insert:
"(4) In relation to wrongful acts or omissions falling within the said Article 29 this section shall have effect in substitution for the limitation imposed by section 5(2) of the said Act of 1961; and accordingly the following provisions of that Act are hereby repealed, that is to say, in subsection (2) of section 5, the words from 'but no action' to the end of the subsection; and, in paragraph (a) of section 11, heads (i) and (iii)."
Mr. Buck: I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment follows on from the other Amendments. It is of a technical and consequential character.
Question put and agreed to.

New Clause "A".—(AMENDMENT OF S. 1(1) OF LIMITATION (ENEMIES AND WAR PRISONERS) ACT 1945.)
Lords Amendment: In page 10, line 26, at end insert new Clause "A":
"A.—Section 1(1) of the Limitation (Enemies and War Prisoners) Act 1945 as set out in section 4(a) of that Act (which provides for the suspension of the limitation period for bringing an action where a party was an enemy or was detained in enemy territory) shall be amended by adding at the end of the said section 1(1) the words 'section six of the Law Reform (Limitation of Actions, etc.) Act 1954. subsection (1) of section ten of the Limitation Act 1963'."
Mr. Buck: I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment corresponds to the English Amendments which we have considered relating to joint tortfeasors.
Question put and agreed to.
Subsequent Lords Amendment agreed to.

New Clause "B".—(PROVISIONS AS TO NORTHERN IRELAND.)
Lords Amendment: In page 12, line 2, at end insert new Clause "B":
"B.—(1) Section 5 of the Limitation (Enemies and War Prisoners) Act 1945 (which, in relation to Northern Ireland, restricts the application of that Act to periods of limitation prescribed by enactments in force at the date of the passing of that Act) shall have effect as if for the words 'in force in Northern Ireland at the date of the passing of this Act' there were substituted the words 'for the time being in force in Northern Ireland'.
(2) If the Parliament of Northern Ireland enacts legislation whereby the right to recover contribution conferred by section 16 of the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1937 is made subject to a period of limitation of two years, and that period of limitation is not liable to be extended or postponed except in circumstances, and to an extent, corresponding to those provided for by section 4(3) of this Act, no limitation or restriction imposed by the Government of Ireland Act 1920 on the power of that Parliament to make laws shall be construed as preventing that Parliament (either by the same or any subsequent legislation) from repealing, in their application to Northern Ireland, the words repealed in relation to England and Wales by section 4(4) of this Act.
(3) If, in accordance with the last preceding subsection, the Parliament of Northern Ireland repeals those words in their application to Northern Ireland, that Parliament shall not have power to enact legislation whereby, in relation to torts falling within Article 29 in Schedule 1 to the Carriage by Air Act 1961, the period of limitation applicable to the right to recover contribution conferred by the said section 16, or by any enactment whereby that section is superseded, would be reduced below, or increased above, two years, or would be liable to be extended or postponed otherwise than as mentioned in the last preceding sub section."
Mr. Buck: I beg to move, That this House doth agree with the Lords in the said Amendment.
We now cross to another geographical area. We move to Northern Ireland, because this substantial Amendment makes it possible for the Parliament of Northern Ireland, if it so wishes, to pass legislation which will give to the Northern Ireland courts the benefits conferred by the Bill. I hope that hon. Members will not press me too much about the technicalities of precisely how this is done. I trust that they will accept the Amendment and my assurance that I have excellent advice that this is the effect of this substantial Amendment.
Question put and agreed to.
Remaining Lords Amendments agreed to.

MATRIMONIAL CAUSES AND RECONCILIATION BILL (changed to MATRIMONIAL CAUSES BILL)
Lords Amendments considered.

New Clause.—(ADULTERY NOT TO BE REVIVED.)
Lords Amendment: In page 1, line 22, at end insert new Clause "A":
"A.—Adultery which has been condoned shall not be capable of being revived."
1.40 p.m.
Mr. Leo Abse: I beg to move, That this House doth agree with the Lords in the said Amendment.
The House will be aware that a matrimonial offence is condoned where the injured spouse, with knowledge of the material facts, forgives the other spouse, and confirms that forgiveness by reinstatement in the matrimonial home. Such forgiveness is at present essentially a conditional one, and this Amendment would alter the present circumstances.
If, for example, an innocent wife discovers that her husband has committed adultery, she forgives him conditionally, so that if, subsequently, he commits an offence—albeit, one that would not be sufficient on which to ground a petition for divorce—the original adultery is at present revived. I do not doubt that one of the reasons behind this principle of law that has hitherto prevailed has been a desire that there should exist in the law the possibility of reconciliation, in so far that it would encourage an injured spouse to return to the other party, in the belief that if a further offence took place the opportunity to obtain a divorce would not have been wholly abandoned.
The House will know that material alterations have now taken place as a consequence of this Measure. When an offence has been committed, it will now be possible for the parties to come together for three months and endeavour to reach a reconciliation. This can be done without prejudice to the injured spouse, if there is no reconciliation, being able to petition.
I would, therefore, suggest that there is much within this Amendment to commend it to the House because, clearly, it will now be possible for an injured

2029
spouse to try for three months to decide whether or not the offence complained of can be tolerated. There is much to be said for the idea, which follows from this Amendment, that the offence committed should not, as it were, hang over the head of the injuring party for the rest of the marriage. There must come a time when that should stop.
It seems right that if two parties have been at odds and one of them has the knowledge that the other party has committed adultery, and have, after three months, decided to live together, it is time to bury that memory, and time has been given by this Measure for healing to take place. I therefore think that at the end of three months it is right and proper that the hatchet should be buried, if possible, for ever.
That does not mean, nor should I like it to be thought, that I consider it not to be possible for certain marginal cases of hardship to arise as a consequence of this Amendment It could occur, for example, that an innocent wife could take back a husband who had committed adultery and, after a month or two, or three or four—to make the point more apposite, let us say, after four months—the husband could desert the wife. The wife would not then be able to obtain a divorce for three years from the time of the desertion. She would thus suffer hardship, although she was quite innocent.
However, although that hardship might arise, and I do not think that this point has really been considered in another place, I believe that, on balance, given the changes in the law in Clauses 1 and 2—as long as we have the absurdity of basing our divorce law on the doctrine of a matrimonial offence, as long as we remain wedded to that antiquated and absurd doctrine—this is probably as well as we can do. No doubt the day will come when we turn from the doctrine of the matrimonial offence and take a rational approach to divorce in considering whether a marriage has really broken down or whether, in the interest of the children of the marriage, it should be continued. We shall not then be bedevilled by the complexities contained in this Amendment.
Until that time comes, I ask the House to say, whilst bearing in mind, as I certainly do, that this Amendment may give
2030
rise to some marginal hardships, but that we now have two Clauses which radically alter the doctrine of condonation, that this Amendment is more likely to bring sustained peace within a household in which the parties have decided, after three months, to continue the marriage, because I do not believe that the ghost, as it were, of a past offence should walk for ever within a marriage.
1.45 p.m.
Mr. A. J. Irvine: I do not welcome this Amendment and I am glad to have an opportunity to indicate my grounds at this early stage so that the learned Solicitor-General, if he is to speak, may have for his consideration the conflicting views that exist on this point. I do not welcome the new Clause, mainly because it seems to me to run basically counter to the spirit and object of the Bill.
I have felt admiration for the energy with which my hon. Friend the Member for Pontypool (Mr. Abse) has worked on this Measure, and I have recognised that one of his main objects is the very admirable one of promoting reconciliation between spouses and to save marriages threatened with a breakdown. This Lords Amendment—coming, I may say, at a very late stage in our consideration of the whole problem—runs counter to that main objective. Its effect will often be just the reverse of encouraging reconciliation, which is why I say that it is adverse to the spirit of the Bill.
Condonation of a matrimonial offence is often a major and vitally important step to the saving of a marriage threatened with disaster, and reconciliation, which is the aim we all say we desire to advance, in a great number of cases derives from condonation. But if the new Clause becomes law, making this important change, responsible counsel advising, say, an innocent wife whether or not to condone her husband's adultery, will be in duty bound to point out the risk attaching to such condonation.
He has to point out that it is a once-for-all decision that she is making, a decision from which there is no going back. When he is giving that advice, perfectly properly, what he is doing is to discourage condonation and by the same token doing something which may

2031
be inimical to the prospect of reconciliation. He is placed in that dilemma by the proposed change in the law.
If I may say so with respect, the arguments against this extremely important Amendment went pretty well by default in another place. Yet strong opinions have been expressed, which surely could have been brought forward and some of which I desire to bring forward now, opposing the change proposed in this Amendment. I have in mind in particular a passage in a judgment, which the Solicitor-General will remember, in the case of Richardson v. Richardson which is to be found on page 22 of the Law Reports, Probate Division, 1950.
In his judgment in that case, Lord Justice Denning, as he then was, said:
"If the guilty husband after being taken back does not behave properly"—
he was dealing in that case with the question of a revival of a matrimonial offence—
"and the marriage breaks down afresh by reason of his conduct, without any fault of the innocent wife she is entitled to rely on his original guilty act as a ground for divorce."
Lord Denning goes on, and I ask hon. Members to have careful regard to the words:
"Any other view would greatly hamper attempts at reconciliation, for no innocent party would be inclined to take a guilty party back if it meant being tied for ever to an unhappy marriage."
Here is an important matter. Here is the Lord Justice saying about the possibility of the revival of the matrimonial offence after condonation that it can have an important significance in its bearing upon attempts at reconciliation.
It is true to say that the arguments in another place for the new Clause which appeared to carry weight were three in number. First, the view was expressed that it had the merit of bringing English law into line with Scottish law. I am a Scotsman by birth and origin and I am very proud of my associations with the profession of the law in Scotland through my father. Nevertheless, I cannot regard that, and I do not expect the House to regard it, as a conclusive argument on the point, but it was one of the three.
It was also suggested that it is wrong that condoned adultery should be revived by a trivial offence. I think that that
2032
might be so, but the present law, as I understand, is that substantial misconduct with consequences which require proof is needed to revive adultery. If trivial matters were allowed to have this effect it would simply mean that the existing law was not being correctly applied.
In the case of Richardson v. Richardson, where Lord Denning delivered the judgment from which I have quoted, there had been conjugal unkindness of a serious and harsh character. It was part of the facts of the case that the wife's health was being affected by it. None the less, on the facts in that case it was held that the conjugal unkindness was not having the effect of breaking down the marriage. There were other factors which were having that effect.
In that case, therefore, although the conjugal unkindness which it was argued should have revived the condoned adultery was affecting the wife's health, because it could not be proved to reach the point that it was causing the break down of the marriage Lord Denning did not dissent from the decision, and it was held that the adultery was not revived. To say that the law makes it possible to revive adultery by trivial matters is incorrect, but this view seems to have received a good deal of support in another place.
The third and main argument in another place was the argument based on the hard case. It was argued that condoned adultery, under the existing state of the law, could be followed by many years of satisfactory marriage, perhaps a decade, and that it was wrong at a late stage, perhaps in old age, that it should be possible to revive the offence. I do not disagree with that, but that point could be met by a limitation provision. I do not think that it should be met by demolishing the whole present doctrine in this rapid and hazardous fashion. To argue from the kind of exceptional case to which I have referred is simply to argue from a hard case to make bad law.
I do not suggest that all the weight of the argument is on one side. I agree with my hon. Friend that there are arguments the other way. Our duty is to balance the arguments and consider their relative weight. I recognise that there will be cases in which the knowledge that after condonation the other spouse can revive the adultery at any time may serve in particular instances to vitiate

2033
the relationship between the spouses and mar the prospects of reconciliation. We are dealing here, of all matters, with personal matters, and with certain temperaments and personalities I acknowledge that that might be the result, in some cases, of the existing state of the law.
I suggest, however, that there would be as many cases, perhaps more, in which the right to revive will check the guilty spouse from further misconduct and thereby prompt the prospect of reconciliation. It is a valuable check for a person who has been guilty once to know that this difficulty and disadvantage may come his way if he errs again, even if it is something less than an error which by itself would constitute ground initially for relief by divorce.
I think that, on balance, the existing state of the law is one which gives the better prospect for reconciliation. One has to remember in this connection that the point of danger is not in the early months after reconciliation. That is why I am not very content with the suggestion that the difficulty to which I am pointing is substantially mitigated by the Clause in my hon. Friend's Bill relating to the three months period of experimental reconciliation. It is after an interval of time longer than that when the philanderer is likely to go astray again.
2.0 p.m.
I have spoken at some length because I attach great importance to this matter. I want it to be quite clear that I do not like the Clause. It will often stand in the way of reconciliation, for the reasons which I have given. It will result in injustice. My hon. Friend gave an example of the kind of injustice that it might create and it was a very formidable example. It was only one of many but if I may say so, it was well chosen.
The case my hon. Friend mentioned, quite rightly, was of an innocent wife who has condoned her husband's adultery, and then she is deserted. By virtue of the new Clause—not by virtue of anything else, not as a consequence of the existing law of England—this woman will find that she has to wait three years before she can obtain relief against her deserting husband. This is a serious matter. Surely this is something which justifies the proposition that I made earlier that the new Clause runs
2034
counter to the spirit and the purpose of my hon. Friend's Bill.
In addition to that, what logic is there in a system of law under which condoned cruelty can be revived when condoned adultery cannot?
I am placed in a great difficulty in a matter of this kind. I think that that will be understood in all quarters of the House. At a late stage in the consideration of this Bill it is sought to slide in this important new Clause. I do not want to imperil any hon. Friend's Bill, but I am most disquieted by what has occurred and is occurring. As I say, the argument against the Clause has very largely, perhaps almost entirely, gone by default until now. If any hon. Member can suggest an appropriate fashion in which this important matter can be dealt with more satisfactorily without putting the whole Bill to risk, nobody would be better pleased than I.
As I say, I do not want to imperil my hon. Friend's Bill, but I am glad that it should be on record that I think that the new Clause is a mistake.
Mr. Eric Fletcher: I feel sure that nobody will resent my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) having spoken at some length on this Amendment. I am sure the House will agree that the Amendment introduces a very important new concept into the law of England, and I feel that my hon. and learned Friend has rendered a service in having put forth arguments against the proposed Clause. I acknowledge that my hon. Friend the Member for Pontypool (Mr. Abse) did not exactly speak with great enthusiasm in commending this Amendment.
I feel that nobody would wish to imperil the passage into law of this Bill, and it is worth while trying to answer some of my hon. and learned Friend's arguments and stating the principal reasons which have induced me to support this new Clause. I have come to this conclusion, for reasons slightly different from those of my hon. Friend the Member for Pontypool. I believe that even apart from the Clauses in the Bill, even if the law of England had not been changed at all, this particular change is, on balance, desirable.

2035
I will give my reasons. First, I would not support it if I thought this Clause was going to make reconciliation more difficult. I can appreciate that there may be marginal cases in which it may perhaps militate against reconciliation, but I believe that, on the whole, we shall be ensuring justice in the majority of cases by making this change in the law.
I am never impressed by the argument that we should change the law of England because by so doing we should be putting it on a parity with the law of Scotland, but it is worth while reminding ourselves why this doctrine of revival has never been part of the law of Scotland. There is something artificial about a doctrine that adultery, once condoned, can be revived. That amounts not to condonation but to conditional condonation—conditional forgiveness. It could be argued that conditional forgiveness is a contradiction in terms. It could certainly be argued that it is undesirable in principle.
The law of Scotland, which has never recognised the revival of an offence once condoned, was justified by Lord Blackburn in these words: he said that the doctrine of revival
"is strongly objected to as varying the status of married persons. On principle, a reconciliation being entered into with full knowledge of the guilt and with free and deliberate intention to forgive it, when that reconciliation is followed by living together as man and wife, the status of the couple ought to be the same and not more precarious than if there were a new marriage."
In other words, it is argued, and I think with cogency, that forgiveness as between husband and wife, or indeed in any other human relationship, is something that ought, particularly in the relationship between husband and wife, to be final, complete and unconditional. There is something repugnant about the whole conception of forgiveness being conditional.
I think historically the reason why this idea of revival after condonation ever arose was because until the Herbert Act was passed in 1937 a wife could not obtain a decree for divorce on the ground of adultery alone. There had to be some other matrimonial offence as well—either desertion or cruelty. There were, naturally, a number of cases in which adultery had occurred and had been condoned and then had been followed by some other matrimonial offence, perhaps cruelty or
2036
desertion, and the wife was in the difficulty that she had condoned one offence and now had ground for complaint, but the law did not enable her to have her marriage dissolved unless she could argue that the second offence—for example, cruelty—had revived the earlier matrimonial offence of adultery which had been condoned. Therefore, as I understand it, the law grew up in that fashion for the protection of injured wives.
But when the law was changed in 1937 following the recommendations of the Royal Commission on Divorce, which reported in 1912, and when for the first time a wife was entitled to obtain a divorce on the ground of adultery alone, of desertion alone or of cruelty alone, the justification for the whole doctrine of revival of a condoned offence disappeared in substance and in theory. But, unfortunately, it did not disappear from the law, not being formally abolished in the 1937 Act.
Mr. A. J. Irvine: I am following my hon. Friend's argument with great interest. It was the historical justification, to which he has already referred, which confessedly disappeared at that point, for the reasons which he has indicated. I would not argue to the contrary on that. But it was the historical, and not any other justification. I am sure that my hon. Friend will address himself to the contemporary issue.
Mr. Fletcher: I shall certainly do so. I was merely mentioning the historical aspect to put the matter into perspective.
On the contemporary aspect, one finds that a matrimonial offence is committed and is condoned and there is, presumably, forgiveness, reconciliation and a desire on the part of both parties to start afresh—a desire which I think is enhanced by the features of the Bill. What is the position them? If some further matrimonial offence is committed by one of the parties, the husband for the sake of argument, the wife has her full remedy. If there is a further matrimonial offence of adultery, cruelty or desertion entitling the wife to a divorce, she is no worse off at all than if she had not condoned the first offence.
It cannot, therefore, be said that by condonation one has removed the possibility of getting a divorce subsequently

2037
if further facts of themselves justify a divorce. But so long as this doctrine of revival after condonation remains part of the law the situation is that for some conduct less than would justify a divorce in itself a spouse is entitled to say that the condonation should be removed and that the earlier offence should be deemed to have revived so as to entitled him or her to go back to it and rely upon it for a divorce.
The question is, and my hon. and learned Friend faced this quite properly; what is the conduct less than a matrimonial offence which revives condonation in the law as it stands today? My hon. and learned Friend suggested that in another place they had mistaken what the law was. I am not at all sure that anybody is very clear about it. It cannot be argued that some trivial misconduct, such as being late for breakfast, revives a matrimonial offence which has once been condoned, but my hon. and learned Friend suggested that if a husband does not behave himself properly, that would justify a wife in reviving adultery that had already been condoned.
2.15 p.m.
But what is meant by "behaving one-self properly"? There have been cases in which, as the law stands, unkind conduct by a husband amounting to something less than cruelty has been held to revive a condoned offence. It must, of course, be a matter of judgment and a matter of degree in each case as to whether this highly artificial doctrine of reviving a matrimonial offence after conditional condonation arises or not. Anyone who is familiar, as my hon. and learned Friend and other hon. Members present are, with the cases in the Law Reports must know how complex and unsatisfactory this situation is, which in itself makes it very difficult for practitioners to advise about it.
My hon. and learned Friend has referred to one case. The matter arose in a very pertinent form in the case of Beard, where Mr. Justice Vaisey gave a dissenting judgment from which I should like to quote a passage because be gave the reasons why this doctrine of reviving a condoned offence should be abolished and used words on which, I am quite sure, it would be impossible for me to improve. This was some ten years ago. What he said represents not
2038
what the law is now but what the law should be as Mr. Justice Vaisey would have liked it and as it will be if this Lords Amendment is accepted.
Mr. Justice Vaisey said:
"With all respect to those who think otherwise, there seems to me to be something almost inhuman in a law which enables a wife or a husband to obtain, as of right, a divorce from the other in their old age, upon the ground of one single act of adultery committed by the other in the time of their far off youth and immediately condoned, but now raked up from the past upon some petty provocation insufficient in itself to be a ground for the relief so tardily sought. No Statute of Limitation applies to such a case, no plea of acquiescence or delay or unreasonableness could avail, nor could the court draw any distinction between a single act of adultery committed under exceptional temptation, and a series of such acts of a really heinous character. In the circumstances of the present time, there must be many husbands and wives who have erred and been taken back, and I cannot but think that it would be in the public interest that they should hold their forgiving spouses upon a firm rather than a precarious tenure."
That seems to me to be the doctrine that I would wish to see established in the law of England, and it is for these reasons that I hope that the House will adopt the Amendment which has been introduced into the Bill—
Mr. Niall MacDermot: Before my hon. Friend finishes, might I ask him whether all the arguments that he has been putting forward would not apply equally to the abolition of the doctrine of revival as applied to cruelty? Is that his view, or does he think that a distinction is to be drawn between revival of cruelty and revival of adultery?
Mr. Fletcher: This is a point to which my hon. and learned Friend also referred. My observation on that is that I appreciate that this Bill, which I regard as an improvement in the present law of divorce, does not produce an ideal system of divorce or of reconciliation. I recognise that anomalies will remain, but anomalies will probably always remain in whatever matrimonial law we have. My hon. Friend the Member for Pontypool and I did not agree about various Clauses he wanted to introduce and which are no longer here. All we can do is to get the Bill in the best form in which we can get it with the material we have at hand.
On the specific question asked by my hon. and learned Friend the Member for Derby, North (Mr. MacDermot), I am

2039
inclined to think that the same argument against the revival of condoned cruelty would apply to the argument I have been using against the revival of condoned adultery. I do not express a final opinion on that. This is only my offhand opinion. But whatever is the true view of it this argument cannot be one for resisting this Amendment.
I have no doubt that, in subsequent sessions, particularly if my hon. Friend the Member for Pontypool is again lucky in the Ballot, further opportunities for changing the divorce law will arise and that, I believe, will be sufficient time to deal with any question of change concerning the revival of condoned cruelty. I apologisefor having spoken so long but this is an important subject. It is important that the House and the public should know the serious changes that are being made in the law and the reasons that have at any rate influenced some of us to support them.
The Solicitor General (Sir Peter Rawlinson): I only speak on this Amendment because the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) seemed to assume that I would, as he put it, deal with this matter. But, as I have said on many occasions, the position I adopt on behalf of the Government on this matter is to tell the House that this question, like others in this Bill, is something for the personal judgment—and conscience, as it affects certain parts of the Measure—of hon. Members. Indeed, I remember that the hon. Member for Pontypool (Mr. Abse) good humouredly teased me at the end of the Committee stage in this House by saying that I had maintained an Olympian aloofness.
Different views have been expressed. No one would complain that anything raised by the hon. and learned Member for Edge Hill, is stated too lengthily or does not contain very good sense and sound argument. He presented views which are undoubtedly held, and have been held for many years in the past, by many people. On the other side of the issue, views have been presented not only by the hon. Member for Pontypool but also by the hon. Member for Islington, East (Mr. Fletcher).
It is to me clear that what motivated people in another place, and may
2040
motivate hon. Members here, is the conception of absolute and complete forgiveness—that, in effect, a new marriage is created by absolute forgiveness of adultery by the innocent spouse and the acceptance back of the guilty partner into the relationship of marriage, completely wiping out the offence. That is something which many people might consider strengthens rather than weakens the opportunities for reconciliation.
If that is so, it would flow from it that there would have to be another full matrimonial offence before the innocent partner who had received back the erring spouse would have grounds for divorce: that is, adultery in such circumstances could not be revived by conduct less than a full matrimonial offence which, under the present law, would allow a spouse to institute proceedings.
I am not advising the House as to which course to follow. But one point was raised by the hon. and learned Member for Derby, North (Mr. MacDermot) about the position of cruelty. The difference was shown and was accepted by Lord Blackburn in the case of Collins following the Royal Commission on Divorce in 1912. For cruelty is nearly always a series of acts, all of which, except the last, would have been condoned. If it is only uncondoned acts which could be relied on, they would not in many cases be sufficient to establish cruelty, whereas a case of cruelty can usually be understood only if the whole range and extent of what has occurred is considered.
So we do, at the moment, have a distinction between condonation of adultery and condonation of cruelty which was accepted by Lord Blackburn in the Collins case following the recommendation of the 1912 Royal Commission.
This issue, however, is a matter for the judgment of hon. Members. Both positions have been accurately presented for the judgment of the House. But hon. Members will take into account the consequences of any action they take. It may be that they think that there are parts of this Measure which they find sufficiently attractive to make them feel that it may not be wise seriously to extend this argument into a real challenge to the Bill as a whole.
Therefore, I suggest that, taking account of both sides of the argument, that may

2041
be the course the House may prefer to follow.
Mr. MacDermot: I find this a very difficult question. My own views have swung somewhat in considering it, but I am inclined to think that the Amendment is right and that there is really a distinction to be drawn between condonation of adultery and condonation of cruelty. There are obviously very strong arguments either way.
The essence of the distinction surely is the very different nature of the offences. The offence of cruelty is an offence directly committed at and aimed at the other spouse. There is no question of secrecy about it. It is know at the time. If one party has been guilty of cruelty it is asking a good deal, as it were, of the other party really to condone that and make an effort, in spite of the cruelty, to make a success of the marriage.
If the innocent party does it, then surely if it is seen that the guilty party is not mending his ways that ought to be sufficient to relieve the innocent party from again being subject to all the duties and bonds of the marriage oath. If what is being condoned is cruelty, then it seems to me that it is reasonable to allow what my hon. Friend the Member for Islington, East (Mr. Fletcher) rightly calls a full condonation, because it must be subject to the condition "Yes. I am prepared to try to make a go of the marriage provided that you try to mend your ways." On the first sign that the guilty party had not changed his ways, surely the other spouse should be in the same position as if cruelty had not been condoned.
2.30 p.m.
The position about adultery seems to be quite different and in many cases might be very different. Adultery, of course, is committed with another party and if once the innocent party is prepared to forgive the offence, it is not asking anything intolerable that that forgiveness shall be absolute. It is very difficult to see how that marriage could start again if the forgiveness were only conditional and if the guilty party always had a Sword of Damocles hanging over his head, with the offence of the past liable to be brought back as a result of some relatively minor matrimonial misconduct.
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Another point is that if a party has been guilty of adultery and is genuinely repentant and wants to make a success of the marriage, there can be no doubt that confession, of that adultery may in certain circumstances be the most successful way of wiping out that offence and of enabling the marriage to have a real chance of being restored, remade and succeeding. If we abolish the doctrine of revival and condonation in relation to adultery, it will become much easier for the guilty party to confess in circumstances where he might reasonably hope that lie will obtain forgiveness, and that is surely desirable.
I have never liked the doctrine of revival. I well remember the first time I came across it in a court case and thinking that it was a doctrine far removed from what in many circumstances one would think was justice and fair play. It is a doctrine which can be used rather spitefully. As I have said, I think that it is probably right to continue the doctrine in relation to cruelty, but I have also come to the conclusion finally that it is right to abolish it in relation to adultery.
Question put and agreed to.

Title
Lords Amendment: In page 3, line 34, leave out "and Reconciliation".
Mr. Abse: I beg to move, That this House doth agree with the Lords in the said Amendment.
I would have thought that after all the travail that this Bill had had, it would not be possible to have any further conflict, but so it is and it appears that in another place, for reasons which I will indicate, there is a desire to change even the Title of the Bill. This is the crowning irony.
The reason which was advanced and which I now put before the House was that all the earlier Acts which dealt in some way with this topic were described as Matrimonial Causes Acts. It was considered that because this would not be the last Act of its kind, there must be a number of Acts and therefore in a series it would cause difficulty to practitioners who are always known for their passion for economy, if they should be burdened with a prolix title such as the Matrimonial Causes and Reconciliation Act.

2043
Therefore, in the interests of this economy and for this convenience this Amendment is now passed to us and I ask with a little less enthusiasm than on the previous Amendment, that the House should pass it. There is considerable logic in what has been urged. The Lord Chancellor in another place in connection with this Title supported this change, characteristically logical and characteristically unimaginative. I would have thought that it would be desirable that lawyers should have a Bill which emblazoned forth their passion and desire to have reconciliation and their diffidence about having causes and severances of marriage.
Fortunately, whatever the House may do, we have been saved by the more imaginative journalists, for whatever we may call it, if it goes down in history at all it will be known as the "Kiss and make up Bill". I confess to a nostalgic feeling for my original Title, but I would certainly not desire, nor, I believe, would the House, to destroy or imperil such value as is within the Bill by having a contest concerning the Title.
Mr. A. J. Irvine: In view of the decision reached by the House earlier this afternoon, I am bound to regard the proposal contained in the Amendment as wholly appropriate.
Question put and agreed to.

DOG RACING (APPOINTED DAYS) BILL (CHANGED TO DOG RACING (BETTING DAYS) BILL)
Lords Amendment considered and agreed to.

BOVINGTON PRIMARY SCHOOL
Motion made, and Question proposed, That this House do now adjourn.—[Mr. Chichester-Clark.]
2.40 p.m.
Mr. Guy Barnett: I should like to take this opportunity to raise the question of the urgent need for new buildings for Bovington Wool Primary School. I first raised this matter on 11th July during Question Time, and when I did so the Minister explained that, in accordance with the policy laid down in the 1958 White Paper, he was concentrating the attention of his Department on secondary schools in order, as
2044
he said, to advance the policy of secondary education for all.
I do not doubt the good sense of concentrating attention on secondary educacation, and I may say in passing that Bovington is fortunate in having a fine building for its secondary school, but I think that the Minister and many hon. Members, as a result of seeing the N.U.T. survey of primary schools, are aware—and the Minister as a consequence of the survey that he is conducting must be even more aware of this—that there are many appallingly bad premises for primary schools in this country.
I am raising this matter of Bovington Primary School not merely because the premises are quite appalling, but also because when the buildings were put up in the first place they were never intended to be used as school buildings, and are therefore doubly unsatisfactory for the purpose.
I wish in passing to draw the attention of the House to the fact that recent educational research has emphasised the importance of the primary stage in education, and I suggest that the buildings, and surroundings in which young children grow up are, if anything, more important than the buildings and surroundings in which those over 13 and 14 grow up. Primary school buildings are of enormous interest and importance.
I am not suggesting—and I hope that nothing I say will be so interpreted—that the Minister is not interested in primary education. I am certain that hon. Members are aware of the Minister's interest in this subject, and the initiative that he has shown in setting up the Plowden Committee to study the problem of primary education is an indication of it, but I am sure that among the points which the Plowden Committee will want to emphasise when its report is eventually published is the importance of the physical environment in which young children are educated.
I turn now to the specific problems of the school that I wish to discuss. First and foremost, the numbers on the school roll are indicative of the problem. There are about 360 on the roll. There is no sense in which the school is one whose numbers are likely to fall. The figure will remain constant, or, if anything, will rise. A fair proportion of the children come from families of Army personnel

2045
because this school is situated in the middle of a large Army camp. A proportion of the children come from civilian families, and their parents, in some cases, are employed in Bovington Camp.
This school could present an enormous challenge. There is no question but that, when people come from other parts of the country and send their children to this school, the resultant mixing of the children in the classes could act as a stimulus to the progress of the school. On the other hand, when a school is provided with bad surroundings and had classrooms, it can act the other way and cause even greater problems for the teachers employed there.
There is another point which I think it would be just and fair for me to raise. A number of hon. Members are becoming increasingly disturbed by the lack of married quarters for Service personnel. I am certain that the amount of wastage that has occurred in the Army has been due in part to the lack of facilities of the kind that I have mentioned. The Government are anxious to maintain their recruiting campaign. It is, therefore, important that the schools available for the children of Army personnel should be good ones. This is particularly important because Army personnel are liable to have to move from place to place, and we should compensate them by providing the best possible premises for schools.
I was interested to read in the Dorset Evening Echo that boarding premises are being provided for Bovington Secondary School. If this is so, I think that some consideration should be given to the primary school as well. I am criticising the condition of this school, so I think I ought to make it quite clear that I have visited the school and have inspected the site and the premises with great care. I met the staff, and I pay a tribute to the headmistress and to her staff for the way in which they are working under extremely difficult conditions.
In a recent letter the headmistress said:
"We are quite a happy staff and have bright patches in our life. I think putting up with inconvenience and hardships is inclined to make a staff pull together more.
… We are all very keenly interested in the answer that you will get on 11th July. At least it will put us on the map."
Is it necessary to put these facts on the map in order to draw the Minister's atten-
2046
tion to the desperate needs of this school? I am sure the right hon. Gentleman shares my view that it is a disgrace that we should have to ventilate the poor conditions in which the children are having to learn and the teachers are having to teach.
I shall now describe some of the conditions at the school in case this information has not percolated through to the Minister. The buildings are a collection of temporary buildings put up during the First World War. They were not intended for school premises at all. The floors are weak, and, as I said on 11th July, the floor in the entrance hall is positively unsafe. Most of the main parts of the building is of corrugated iron, and a lot of this is rusted and in poor condition. The headmistress reports that there are about ten to twelve places where the roofleaks, and that the heating system is totally inadequate. There are a number of coke stoves in various classrooms, and I am told that in winter these stoves give off the most appalling fumes. In addition, the sanitary condition is far below modern standards, and the back fittings of the water closets are badly rusted and in need of replacement.
When I went round the buildings recently, I was aware that many of the classrooms had a damp feel about them. The doors, and window frames fitted badly, there were cracks in the walls, and parts of the building were extremely draughty. I therefore ask the Minister whether or not it was right, during Question Time on 11th July, to draw the attention of the House to the fact that the health of both teachers and children was likely to be affected by these circumstances?
Since 1947 other classrooms have been provided in this school, and since 1959 one terrapin-type classroom, which is a pleasant contrast with the rest of the school, has been provided. The school has no playing fields, even though it is situated in a rural area where facilities of this kind could be provided. The only place where the children may play is on an irregularly-shaped playground which makes supervision by the staff at playtime extremely difficult. The matter is all the more serious because, bordering the playground, there is a dangerous corrugated iron fence, and it is extremely difficult

2047
for the staff to stop the children climbing it, with the possibility of doing great damage to themselves.
I first heard about this school early this year. The matter was raised by the Wool Parish Council. The Minister will be aware that since 1960 that parish council has taken a considerable interest in the problem and expressed concern about the circumstances in which the school is situated. Matters have been delayed because of the necessity of finding a new site to build a new primary school. Now that site has been found, and it is worth pointing out that the War Office wants the existing site of the school towards the end of 1967. The Minister admitted this in his reply to my Question.
I think that I am now justified in asking him whether, if the school does not find a place in the 1963–64 programme, he can guarantee that these new premises will be ready when the War Office requires the present site for its own development. I ask this question because, regrettable as it is, many schools in the past have taken up to three years to build, and since there is a large primary school population in this place, I am anxious to see that buildings are available, quite apart from the question of the appalling buildings in which the children have had to exist up to the present.
The matter was brought to a head locally when the school had to be closed down last winter because of the very bad weather. Education ceased in the school, because the winter conditions made the buildings almost uninhabitable for education purposes.
I ask the Minister to give this matter his very sympathetic consideration. Does he really consider it enough to say, as he said in reply to my Question:
"… it would be worth the authority putting this project forward in the 1965–66 programme."—[OFFICIAL REPORT, 11th July, 1963; Vol. 680, c. 1391.]
Does not he regard it as a little more urgent than that? Perhaps I may quote from a letter written by the Ministry of Education to the Clerk of the Wool Parish Council. It said:
"Priority has to be given to new schools for children who would otherwise have no schools to go to; to the reorganisation of all-age schools and to the improvement of secondary school provision. The replacement
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or improvement of sub-standard primary schools is not excluded, but every case has to be selected on its merits, and the worst schools selected first, so it is bound to be some time before all unsatisfactory primary schools are replaced."
I draw the special attention of the Minister to the phrase
"the worst schools have to be selected first,"
It seems to me that I have in my constituency the worst, or at least one of the worst, schools in the country. The buildings are in an appalling state. They were never intended for a school in the first place. I therefore ask the Minister to give sympathetic consideration to this case for the 1964–65 programme.
2.53 p.m.
The Minister of Education (Sir Edward Boyle): I should like to begin by congratulating the hon. Member for Dorset, South (Mr. Barnett) on the extremely clear and admirably concise way in which he put his case for the Bovington Primary School. His closing words reminded me a little of the remark which Sir Thomas More made many centuries ago:
"Even if there is only one shrewish wife in the world every man thinks that he hath her."
I can tell the hon. Member straight away that there is no dispute that the premises of this school are unsatisfactory and will clearly have to be replaced. What we are now considering is whether this replacement can be carried out in the 1964–65 building programme. I must tell him, at the start of my speech, that the programme is now fully allocated—I shall have a little more to say about that later—and that it will not be possible to include this school in the 1964–65 programme.
As I explained to the hon. Member on 11th July, in the matter of improvements and replacements for next year I have deliberately concentrated, as in the previous four years, on secondary schools. But the hon. Member reasonably said, in effect, that if this school cannot be included in the 1964–65 building programme, what then? He asked me whether I could not go any further than I went on 11th July, looking towards the future. Although this afternoon I cannot make a statement about the 1965–66 building programme only a fortnight after I have announced the final figures for 1964–65, I can certainly tell him that

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this project was put forward for the 1964–65 programme as a purely replacement project, but as the hon. Member rightly said, the site on which the school is situated will be required by the end of 1967, and the lease will be up; I can, therefore, tell him that this replacement project would undoubtedly have a high priority, not only in the authority's eyes but in the Minister's eyes, for 1965–66, not only because of the condition of the school but because of the time factor arising from the final termination of the lease.
When, on 11th July, I said that it would be worth the authority putting this forward far the 1965–66 programme, I meant to convey a hint that this project would definitely have a higher priority for the following year, from the Ministry's point of view, partly because, in 1965–66 I hope that we shall be able to make a start on primary school replacements—and even under that heading this school would have a high place in the queue—but also because of the time factor arising from the fact that the lease runs out by 1967.
Meanwhile, I have one or two more things to say about the school and also about the Dorset building programme as a whole. The hon. Member is absolutely right in the importance he attaches to primary education. There is one thing about the school that, despite the very unsatisfactory buildings, makes it a little more fortunately placed than some primary schools. There are nine classes, and the average size of class is 34. As he says, it has a first-class headmistress and a good staff, and the size of classes is below the average for the country. All the classes are below the size laid down in the Ministry's regulations. From that point of view the school is not badly favoured, and that is an important point.
As for the building itself, I recognise that one of the main irritating features must be the roof. It is not just that the water comes in, but the fear that the water will come in, that must concentrate the greatest exasperation all the time. Therefore, I am glad to be able to tell the hon. Member that I have learnt from the Dorset authority that this summer it intends to spend £550 in providing a bitumen covering for the roof of the main building.
That will not make the roof thoroughly serviceable, but it should help during the
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remaining years of the school's life to reduce the discomfort and irritation caused by these leaks. During the last eight years one of the worst rooms has been taken out of use and replaced, as the hon. Gentleman said, by a terrapin class-room. I am also told that the authority has spent over £3,000 on a number of small extensions, even including the provision of new floors in a number of class-rooms and also some new wash basins.
So far as Dorset as a whole is concerned, I must say that if one takes the period 1960–65 Dorset has not, I think, come off too badly from the point of view of school buildings. It has had 21 projects altogether—11 secondary and 10 primary. The current value of the programmes is nearly £1,900,000 for a school population of 44,000, so Dorset has a total school-building programme rather above the average for the country as a whole taking into account the size of the population.
The hon. Gentleman has, if I may say so, with great reason and moderation not pressed his case today about the other school which he raised with me, the Weymouth County Grammar School. I realise the anxiety caused to the authority by the omission of the extension of that project for 1964–65, but, of course, it is a fact that in the 1964–65 programme there is a large project valued at over £300,000 for the Poole County Grammar School.
Therefore, to sum up what I have to say about Bovington, I assure the hon. Gentleman that the project will definitely have a much higher priority for the next building programme in 1965–66 purely because of the condition of the school and also because of the time factor arising out of the end of the lease. I hope that the hon. Gentleman will not think that I am taking an unfair advantage of the situation, and that I will not be trespassing on your patience too much, Mr. Speaker, if for a moment I take the opportunity to say one or two other things about school building in view of the fact that we are on that subject.
Next Tuesday, I shall be announcing in the House the additional projects that I have been able to approve for the 1964 major school-building programme. Within the total value of the extra £5 million

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which I announced a fortnight ago I have now approved about 30 additional projects, full details of which will be given next Tuesday in the Official Report, mainly to replace or improve existing secondary school buildings. I shall also be announcing with full details a further 45 projects totalling £2·3 million, mainly to accommodate increasing numbers of pupils or to keep pace with new housing. They will come out of the reserve of money which I mentioned when we first debated school building at the end of March.
I mention this for two reasons. The first is that naturally, hon. Members like the hon. Gentleman opposite very reasonably raise particular cases of bad schools and they get debated at some length in the House. Possibly we do not pay quite so much attention to the schools which get through the programme. For example, the right hon. Member for Derby, South (Mr. P. Noel-Baker) devoted four columns of HANSARD of 26th March on the wrongness of the Ministry at not replacing St. Mary's Secondary School, Derby. That school will be in the list published on Tuesday of next week.
There is just one other point I should like to suggest. During the five years 1960–65, out of a sum now rather more than £300 million for school building starts, something like half the money will have gone either to replacement projects or projects needed to reorganise all-age schools. I claim that when these programmes and these projects are all completed—only about one-quarter have been so far—this is going to mark an important step towards the achievement of secondary education for all.
Very roughly speaking, I think that if one spent £¼ million on a secondary school replacement this means that 1,000 children over a period of 10 years have a very much better opportunity of an advanced course in a secondary school. Therefore, even if one deducts the number of grammar school projects between 1960 and 1965—and I must say some of the most deserving cases in the country have been grammar school projects, where advanced courses have largely been the rule now for a long time for all the pupils, and the wastage from grammar schools at the age of 15 has been getting less—our programme for 1960–
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65 will mean that over half a million children in the country for a period of 10 years will have an infinitely better opportunity of advanced courses leading to higher educational qualifications than ever before.
I mention that because recently there was a very interesting debate in another place to which I was lucky enough to be able to listen. In an extraordinarily interesting speech which was critical of the Government, the Baroness Wootton—it would be wrong for me to quote her—raised the question whether I was really acting on my principle when I said that I did not start from the assumption that potential intelligence and ability were distributed unequally among different sections of the community. The noble Lady raised the question whether, having enunciated that principle, I really acted on it.
I think that the concentration by the Government on secondary school improvements between 1960 and 1965 will mean a considerable extension of opportunity to hundreds of thousands of children in the community who did not have that advantage before. It is, of course, easy to speak about maintained schools from the standpoint of this Dispatch Box. It is another matter to have to make the best of unsatisfactory conditions and there are many schools still having to make the best of these conditions for a number of reasons. But I do not think it fair to say that the primary schools have been left out by the Government during these five years.
After all, the successive instalments of teacher training expansion will prove of more benefit to the primary schools than any other. The decision to build up the training college population to a total of 80,000 students by 1970 will make more difference to primary and infant schools than to any other. But I certainly recognise the great problems caused for many primary schools in all parts of the country and I assure the hon. Member that, quite apart from the special circumstances of Bovington where the lease is running out, it is my hope that we shall be able to make a start with primary school replacements in the building programme beginning in the year 1965–66.
Question put and agreed to.
Adjourned accordingly at seven minutes past Three o'clock.