Lords Sitting of 7 July 1966

Preamble
The House met at three of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Derby
The Viscount of Arbuthnott—Took the Oath.
The Lord Roborough—Took the Oath.

PERTHINVERNESS (A.9) ROAD IMPROVEMENT
3.7 p.m.
LORD ALLERTON: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether plans have been made for the improvement of the A.9 road between Perth and Inverness; and, if so, when it is expected that the improvements will be completed.]
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES): My Lords, plans have been made, and powers obtained, for a number of improvements, involving diversions, in Perthshire. Two of these schemes will probably be started this year; but others will have to await the completion of works needed to improve trunk roads in the industrial belt.
LORD ALLERTON: My Lords, in thanking the noble Lord for that reply, may I ask him whether he is aware that, owing to the vastly increased tourist traffic in the summer and during the skiing season in winter, this road is loaded almost to capacity? May I further ask him whether the accident rate on this road is not abnormally high?
LORD HUGHES: My Lords, as I know from personal experience, travelling on this road at this time of the year, and for the next two months or so, can be a little frustrating, but fortunately it does not go beyond that. Traffic statistics show considerable leeway before the overcrowding of the road brings
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about a situation which would compel immediate action. It is being kept further back in the lists, because in the central belts the problem has already become much more acute than on this road. In this situation, where we cannot spend on roads all the money we should like to at any given time, we must work according to priorities.
LORD FERRIER: My Lords, can the noble Lord say whether this road or any part of it is subject to the 50 miles an hour limit during the busy season, and. if not, whether he would contemplate applying it?
LORD HUGHES: My Lords, I think that is another question; but, speaking from my recollection of that road—and perhaps this is why the question was asked—there are very few places on which one can travel for any distance at 50 miles an hour.

THE SEAMEN'S STRIKE ANDNATIONAL ASSISTANCE
3.10 p.m.
VISCOUNT MASSEREENE AND FERRARD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what has been the amount of National Assistance paid out to seamen's families during the shipping strike.]
LORD SORENSEN: My Lords, approximately £56,000 up to June 28, the latest date for which figures are available. All this was for the assistance of the families and not the men, apart from an extra £800 paid to single men in very urgent need. Some 29,000 seamen or over were on strike, and in relation to that number the amount I have mentioned is not large.
VISCOUNT MASSEREENE AND FERRARD: My Lords, I thank the noble Lord for his Answer. Is he aware that while many people appreciate the contribution made by National Assistance to the alleviation of hardship, they consider that in a strike against the public interest, and particularly a strike which is prolonged in defiance of recommendations of a Government inquiry,

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moneys paid from the public purse to the strikers' families should be recoverable in law against the union concerned? Further, could the noble Lord bring this point of view to the attention of the Royal Commission which is now looking into all aspects of trade union law?
LORD SORENSEN: My Lords, I dare say that there are a number who think as the noble Viscount appears to think, but the great majority of people would not wish to inflict hardship upon innocent wives and children. Certainly since 1948 it has not been the custom to try to secure redress in the way the noble Viscount suggests. I would imagine that, in all the circumstances, most noble Lords in this House and most people throughout the country would prefer to leave things as they are.
VISCOUNT MASSEREENE AND FERRARD: My Lords, is the noble Lord aware that he has completely misunderstood me? My object is not, of course, to inflict hardship on wives and families; my object is to ensure that if the unions, against the public interest, bring the men out on strike, the poor public should not have to support the men's families, but that their union should.
LORD SORENSEN: My Lords, I would point out to the noble Lord, again, that the total amount of £56,000 is really quite small, and amounts to less than £2 per head for the whole of the six weeks for which the men were out. At the same time, I am sure the point which he has made so eloquently will be observed in the right quarter.
LORD WILLIS: My Lords, would not the Minister agree that the provision of National Assistance in cases of hardship is not a privilege, as is implied by this Question, but a right?

THE FIRE, AUTO AND MARINEINSURANCE COMPANY
3.13 p.m.
LORD ERROLL OF HALE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government why, in view of the evidence made available to them more than a year ago, the Board of Trade took no steps to prevent the sequence of events which led to the compulsory winding-up of the Fire, Auto and Marine Insurance Company.]
THE PARLIAMENTARY SECRETARY, BOARD OF TRADE (LORD RHODES): My Lords, the Board of Trade have been in constant touch with the company from the commencement of its business. Neither the information obtained from enquiries made of the company by the Board nor suggestions made to them from other sources would have justified the Board in making earlier use of their powers under the Insurance Companies Act 1958. The reasons for the failure of the company will be fully investigated by the Official Receiver if the Court makes a winding-up order against the company.
LORD ERROLL OF HALE: My Lords, while thanking the noble Lord for that full reply, may I ask whether he could explain why, since his Department has been in constant touch with this company, an official of the Board of Trade made a Press announcement as late as Friday, June 24, saying "As things are at the moment, there does not appear to be any immediate danger of insolvency", and a week later the company was "bust"?
LORD RHODES: That is how it happens. That is quite true. When he made the statement he was not misleading anybody, but other people were.
LORD ERROLL OF HALE: My Lords, does this not imply that the President of the Board of Trade nowadays does not know what is going on in his Department?
LORD RHODES: My Lords, it shows just exactly the opposite, because the 1958 Act was legislation which was consolidating three previous Acts of Parliament. But it has its limitations now, just as it had in the days when the noble Lord was at the Board of Trade, and we shall take steps to remedy this as soon as possible.
THE EARL OF SWINTON: My Lords, is this not exactly the kind of case for which we passed the provision in the recent Act, to put in an inspector at an early stage? That does not require the provisions of the Insurance Companies Act or anything else. If that had been done, might not far less loss have been incurred?
LORD RHODES: My Lords, the question is very much to the point. But may I point out that Section 13 of the 1958 Act sets out stringent conditions for the companies which are non-life. The inspection rights arc under Section 14 of that Act. I must say that those provisions need improving, and I am hoping that it will not be long before we have an opportunity to do that.
LORD DRUMALBYN: My Lords, when the noble Lord is talking about steps to improve the situation, is he referring only to the steps that he has just now mentioned, or has he something else in mind as well?
LORD RHODES: Yes, my Lords, many. We want improved powers for the Board of Trade to require insurance companies to produce documents; the required solvency margins to apply from the date of commencing business, and not merely after two years; an increase in the required minimum paid-up capital and some power to ensure that it is suitably invested; and, possibly, many more which it would bore the House to read out.

EMERGENCY POWERS ACT 1920
Order of the Day read for the consideration of The Queen's Message of yesterday.
THE LORD PRIVY SEAL (THE EARL OF LONGFORD): My Lords, I beg to move that an humble Address be presented to Her Majesty, thanking Her Majesty for her Most Gracious Message informing the House that by Proclamation Her Majesty has revoked the Proclamation of the 22nd June, 1966, proclaiming a State of Emergency.
Moved, That an humble Address be presented to Her Majesty, thanking Her Majesty for Her Most Gracious Message communicating to this House Her Majesty's Declaration that the State of Emergency has now ceased to exist.—(The Earl of Long ford.)
On Question, Motion agreed to: the said Address to be presented to Her Majesty by the Lords with White Staves.

HOUSING (SCOTLAND) BILL [H.L.]
LORD HUGHES: My Lords, I beg leave to introduce a Bill to consolidate certain enactments relating to housing in Scotland, with the exception of certain provisions relating to financial matters. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a.—(Lord Hughes.)
On Question, Bill read 1a, and to be printed.

MATRIMONIAL HOMES BILL [H.L.]
3.19 p.m.
Order of the Day read for receiving the Report of Amendments.
BARONESS SUMMER SKILL: My Lords, I beg to move that this Report be now received. I understand that the noble and learned Viscount, Lord Dilhorne, will open the debate with an Amendment.
Moved, That the Report be now received.—(Baroness Summerskill.)
On Question, Motion agreed to.
Clause 2:
Effect of statutory rights of occupation as charge on dwelling house
2.—(1) Where, at any time during the subsistence of a marriage, one spouse is entitled

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to occupy a dwelling house by virtue of an estate or interest, then the other spouse's rights of occupation under section I above shall be a charge on that estate or interest, having the like priority as if it were an equitable interest created at whichever is the latest of the following dates, that is to say,—

(a) the date when the spouse so entitled acquires the estate or interest;

(b) the date of the marriage; and

(c) the commencement of this Act.

LORD WILBERFORCEmoved, in subsection (1), to leave out all words after "an estate or interest" and to insert instead:
"then, if the other spouse obtains an order under section 1 of this Act, any right of occupation conferred by that order shall be a charge on that estate or interest having priority as if it were an equitable interest created at the date of such order:
Provided that a spouse who intends to apply for any such order may register a priority notice and if an order under section 1 is in fact made and registered within six months from the date of registration of the priority notice, the charge hereby created shall have priority as from the date of registration of such notice."
The noble and learned Lord said: My Lords, my noble and learned friend Lord Dilhorne, and my noble and learned friend Lord Hodson, have asked me to introduce this Amendment which I will shortly explain. I should like first to offer an apology for raising it at this stage, after we had a fairly full discussion on a similar point at the Committee stage. My reason for doing so is twofold. In the first place, at the Committee stage the matter came before your Lordships' Committee rather late in the day, when very few of your Lordships were able to be present; and as this matter touches upon a subject which is of very wide importance in relation to matrimonial property, since it is going to affect the title to every house owned by married people throughout the country, we felt that it ought to receive some consideration by your Lordships in a fuller House.
The second reason for raising this Amendment again is that during the Committee stage the noble Lady, Baroness Summer skill, pointed out a number of technical defects in our Amendment as then drafted, upon which she invited your Lordships' Committee to reject the Amendment. We have taken the opportunity of, we hope, dealing with those technical defects and of making one
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alteration in substance by way of extending the period, so that the matter now comes before your Lordships in a somewhat different form from that in which it was previously considered.
It would be possible without much difficulty to become a bore on the subject of registration of land, but I must take just a little time to explain the purpose of this Amendment, which otherwise may not be very easily understood. The importance of it is that the Bill, as drafted, proposes a very far-reaching change in the law relating to matrimonial property—a change greater in extent than that needed for the immediate purposes for which the noble Lady has introduced the Bill. In the draft of the Bill before your Lordships at the present stage, the Report stage draft, your Lordships have not the Explanatory Memorandum which originally accompanied the Bill, but it told your Lordships this: that the purpose of the Bill was, first, to deal with the situation created in relation to deserted wives by a recent decision of this House in its Judicial capacity; and, secondly, to give substantial effect, though differing in detail, to the recommendations relating to the matrimonial home made by the Royal Commission on Marriage and Divorce—and I ask your Lordships particularly to note that last point, because it is one to which I shall return.
If your Lordships will look at the Bill as amended in Committee, you will see, first of all, in Clause 1, that the deserted spouse is given a very substantial and very new measure of protection against the other spouse, the owner of the matrimonial home, who deserts her. All this is new; it is radical, and it is important. Your Lordships can see the effect of it by glancing at subsection (3), which enables the deserted spouse to apply to a court for an order giving him, or her, a right of occupation of the house notwithstanding that he or she has no right of property in that house at all. And your Lordships will see that that is followed through, in a great deal of detail, in cases where the house is let, where it is a protected tenancy, and so on. With all of that, we are fully content. It is a very necessary and salutary reform, and it gives what we hope will be a very useful measure of protection to wives—and husbands, should the case arise—who are

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deserted by their spouses and who otherwise might fear ejectment from the matrimonial house.
But then we come to Clause 2 of the Bill, which enters into a different field. That enters into the field of property, and there it at once causes us to think that there may be other interests involved. Indeed, there are; and here we must be careful to strike a proper balance. We have to strike a balance between, on the one hand, the rights of the deserted spouse who has to be protected against the possibility that the house may be sold over her head or mortgaged over her head, and, on the other hand, the property rights of all the other spouses in this country, of whom there are hundreds of thousands, who live happily in matrimonial homes and are not threatened by break-up of marriage or differences such as might lead to the application of the rest of the Bill. The point here is that it is necessary to strike a balance between the need to protect the deserted spouse, on the one hand, and the need not to interfere unduly with the property rights of the very much greater number of happily married spouses who own matrimonial homes.
It is necessary to bear in mind that all spouses—every single spouse in the country, whether rich or poor—have a great and vital interest in keeping transactions in property cheap and expeditious; in keeping lawyers out of them, if they can; in avoiding complications over the title, which will arise if, in every case, one gets the Land Registry brought in; and in having the title to their house in such a condition that money can easily be raised upon it from building societies or banks for the mutual interest of both spouses. It is because we believe that this clause as at present drafted does very substantially interefere with the rights of the normal spouse in that respect that we have ventured to put down this Amendment.
May I just say at this point, in order to make it clear, that this Bill is not the occasion—and I do not think it is now treated as the occasion—for introducing a substantial reform as to the rights of spouses in matrimonial property? It does not profess to introduce community of property, or anything of
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that kind. That, of course, was canvassed by the Royal Commission. They came out against community; and, as I understand the noble Lady's objectives, she does not intend to use this Bill as a vehicle for bringing about indirectly some regime of community of property. May I also say that, if there were a regime of community of property, one spouse would then have the right to manage the property. That is always so under systems of community. But under this Bill, as Clause 2 is drafted, a spouse who has not a legal interest in the property is given a right of veto over dealings in the property by the other spouse, which in a way ties the position up more tightly than it would be even under a system of community.
Of course, the Royal Commission dealt with this problem of the matrimonial home, and they made a recommendation about it. What they suggested was that a charge should be conferred on the matrimonial home for the benefit of the deserted wife which should take effect on the making of an order such as we now find referred to in Clause 1. That was their recommendation: that the charge should take effect on the making of a court order. This Bill, as your Lordships will find if you look at Clause 2, subsection (1), makes the charge take effect on the latest of three dates, one of which is the date of the marriage. So this is not a case of a charge arising when a court order is obtained, which was the recommendation of the Royal Commission; this is a case of a charge which may arise right from the date of the marriage.
Our Amendment is a half-way house between the two; it is a compromise. What it does is to contemplate' the making of an order, and says that, if an order is made under Clause 1, a charge shall take effect on that date; but, in order to deal with the possibility, which is a real one, that before an order can be obtained a charge or a disposition of the house may have been made by the deserting husband which would prejudice the deserted wife, we make the provision, to be found in the proviso, enabling the deserted spouse to go to the Land Registry six months before and put on what we call a priority notice. So that, in effect, gives a spouse who is deserted, or who is about to be deserted,

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a six-months' period of grace. She can go to the Land Registry, put her charge on straight away, the moment she thinks that there is going to be a threat to her home. And then, providing she does, in fact, go to the court within six months and get an order under Clause 1 of the Bill, the charge takes effect and is given priority right back to the date when the priority notice was put on. We suggest that to your Lordships as a sensible compromise which does all that is necessary to protect the deserted wife in a practical sense, yet does not involve a very far-reaching, general interference and clogging of the property rights of the hundreds and thousands of other people who will never be in the position of being a deserted spouse.
May I say a word or two in explanation of some of the changes we have made, since the noble Lady was good enough to comment on our previous Amendment? We have altered the drafting of the first paragraph in such a way that the charge takes effect as from the date of the order; that is a change from the previous drafting. In the proviso we have altered the period, which in the previous draft was one month, to six months. This was done to meet the point made by several noble Lords in that discussion; and we hope that that is for practical purposes enough. We have anticipated the second Amendment and have drafted a separate paragraph which merely deals with the case of registered land which the noble Lady said we had not dealt with properly in our previous Amendment.
So there is our Amendment. I hope that with that short exposition I have made it intelligible. The Amendment fits in with the purpose of the Bill as announced to the House when it was introduced. It gives effect to the intentions of the Royal Commission on Marriage and Divorce; it is mechanically possible, and, we believe, fits in with the structure of lande registration. I beg to move.
Amendment moved—
Page 3, line 15, leave out from ("interest") to end of line 23 and insert the said new words.—(Lord Wilberforce.)
3.32 p.m.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, with the permission of my noble friend Lady Summerskill, as this is partly a matter
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of law, may I express first the Government's attitude towards this Amendment? On the Motion recently moved in this House by the noble Lord, Lord Alport, I did not think it right, as Lord Chancellor, to take part in the interesting discussion which then took place, nor to vote upon his Motion. Had a Select Committee been established or constituted, it may be that one thing they might usefully have considered would have been whether it is really necessary for your Lordships always to consider every Bill four times.
To one who is perhaps not so used to your Lordships' House for so many years as many of you, it would seem at first sight that here, at least (I suppose I ought not to say what I thought might or might not happen in another place) as we can read a Bill and can see what Amendments we think ought to be made to it, one would produce one's Amendments and there could be a full debate on the whole thing and a decision reached. What in fact we do is to have a Second Reading when anybody who has some objection to the Bill can say what it is and exactly what Amendment he would like to see made; and, after a discussion, that is replied to by whoever introduced the Bill. Then, in the Committee stage, which in this House is a Committee of the Whole House, the same point is gone into all over again and a decision reached. Then on the Report stage, exactly the same discussion can take place all over again for the third time; and on the Third Reading we do it all over again for the fourth time.
Here is a case in which we had an interesting discussion on the Committee stage of the Bill, and the Committee were, I think, much assisted by the speech made by the noble and learned Lord, Lord Denning, who, after all, had been for years a Judge of the Divorce Division and subsequently hearing appeals as Master of the Rolls in the Court of Appeal. Having then reached a decision (and at least this can be said about the decision: it was in no way at all—and rightly—a decision on Party lines, because most of those who supported my noble friend Lady Summerskill were, I think, Members sitting on the Opposition Benches) and the noble and learned Lord, Lord Denning, being unable through other duties to be here, we are now considering the matter all over again.

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My Lords, the field we are in is that of human relations and, in particular, our divorce law. I suppose most of us to-day in the field of divorce law are middle-of-the-road men. On the one hand, we think that the ideal to aim at is the union for life between one man and one woman; but we realise of what human nature consists; that if there is no divorce there will inevitably be a large number of unions and a large number of illegitimate children; and that divorce must exist for the purpose for which it really does exist, and that is the relief of human suffering. On the other hand, we feel ourselves unable to take the view that anybody who wants to get a divorce ought to be able to go to a post office and get it, because we think that society has a very real interest, first of all in the stability of married life and in the promotion of good marriage, and, secondly, to see that the injured party, and particularly the children of the marriage, are properly provided for.
I believe I am right in thinking that the State pays out from the taxpayer something like £20 million a year to support former wives and children; because we have to face the fact that in truth not a great many men can afford to support two families. When we are considering the financial position between married people we have also to acknowledge that in most civilized countries today the law recognises the fact that if there are children somebody has to cook the food, look after the children and keep the house. If the wife does not do it, either because she is otherwise occupied or will not, then the man must do it—the children cannot be left abandoned—or they must pay somebody else to do it. That is why the law in most civilised countries recognises that it is only because women as a whole are prepared to devote themselves to cooking the food and looking after the children that the man is free—free from what otherwise he might have to do himself—to go and earn an income for both of them. Therefore those countries generally recognise that what either spouse makes during their marriage is partnership property.
With a few exceptions, it is only in England that after 15 or 20 years of married life, if, unfortunately, the marriage breaks up or the husband falls in love
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with a younger woman, it is found that everything they have accumulated during their partnership apart from the woman's clothes, belongs in law to the husband. That is roughly the position. It may be, and usually is, the case that where a man goes off with a younger woman, leaving his wife and children, the matrimonial home is in his name and is his sole legal property—although in real life, particularly if both are working, how they divide up the hire-purchase instalments and the mortgage instalments between them is entirely a matter for arrangement.
Any husband who went to a judge and said, "I would like you to turn my wife and children out of the matrimonial home so that I can live there with my mistress", would have very short shrift. Because the real sufferers in a divorce—and I think all those of us who have been concerned in a good many divorce cases would agree with this—however inevitable the divorce may be, are usually the children. To be able to go on living in the matrimonial home is at all events something, and no judge in such circumstances would make an order turning the wife out of the matrimonial home. But under English law the husband can do this without having to go to a judge at all. All he has to do is to sell the matrimonial home over his wife's head, and when the purchaser knocks at the door and tells the wife and children to get out, she has no answer to that at all.
Because this was the law, and because it was causing so much injustice, a good many years ago now the Court of Appeal—I must not say "invented"—held that a wife, in such circumstances, had an equity in the matrimonial home, which enabled them not to make an order in favour of the husband who had so sold it. It created difficulties because, of course, this equity had to be weighed against the position of a bona fide purchaser who might have bought the house for his own occupation and been relying on being able to occupy it. Therefore the sort of difficult question which tended to arise was whether a prospective purchaser, when he went to look over a house and found a woman there and saw no man's clothes about, ought to ask her how she was getting on with her husband

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or whether her husband had deserted her. Ultimately, in December, while expressing a good deal of reluctance, your Lordships' House held that there was no legal basis for this decision of the Court of Appeal that a deserted wife had an equity in the matrimonial home. So at the present moment, as indeed it will be through August and September, the legal position is that any husband can turn his wife and his children out of the matrimonial home simply by selling it over their heads.
Meanwhile the Royal Commission had considered this and they had proposed a remedy not unlike that of the Amendment—namely, that a wife should be able to go to the court and get an order which would prevent her husband from turning her out. But when, in consequence of the decision of your Lordships' House in December, I had to consider with the Law Commission whether this would be a sufficient remedy, I am bound to say that I came to the conclusion, as they did, that it would not be. In fairness to the Royal Commission I think I must point out that they had first of all to deal with the difficult question: "Should we retain the whole basis of our divorce law", which is that of the matrimonial offence, "or should we change over the whole basis to that of the breakdown of marriage?"
Then they had to consider, separately, each ground of divorce, both in England and in Scotland—nullity of marriage; judicial separation; restitution of conjugal rights, England; jactitation of marriage, England; marriage guidance and conciliation; damages and costs; maintenance in England; aliment in Scotland; the enforcement of maintenance orders made in the High Court; voluntary agreements for separation or maintenance, in England and Scotland separately; the court which should have jurisdiction over matrimonial causes, England and Scotland; the basis of matrimonial jurisdiction and the recognition of the jurisdiction of other countries; matrimonial proceedings in magistrates' courts; the law prohibiting marriage with certain relations by kindred or affinity; the legitimacy of children; the effect of divorce on a will; the reappearance of a spouse after a decree of presumption of death; dis-
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abilities consequent upon divorce in Scotland—and so forth. It is not surprising if, in that very wide ambit, the matrimonial home formed a rather small item in what they were considering; and if they had not time or opportunity to consider, in as much detail as we have since, the practical working of the relief proposed.
What is proposed by this Bill is extremely simple. It is that a wife should at all times have a charge upon the matrimonial home which would be good against a mere gift; that is to say, against her husband simply giving the house to his mistress; but that as against a bona fide purchaser she would have to register her charge on the Land Charges Register. This is very simple. It is fair as against any prospective purchaser who always looks, or gets his solicitor to look, at the Register to see whether or not there are any charges on it. The process of registration is extremely simple. All she has to do is to fill up a form, and if she is doing it in person, accompany it by a statutory declaration, and the total charges are one shilling. That is very simple.
It is said by the movers of this Amendment that this will complicate terrifically any transfers of land at all. If the husband wants to sell the house, he will, in effect, have to get the wife's consent, and all sorts of complications will have to be gone through. This is not so at all. If they are living amicably together, they may be going to sell one home and buy another, and all the wife has to do is to join in the transfer. If she has registered the charge, all she has to do is to send in a notice of cancellation accompanied by another fee of one shilling. The defect of this Amendment is that it gives the wife no charge—apart from the priority notice which I will deal with in a moment—until she has taken proceedings against her husband and has obtained an order against him; and the main point made by the noble and learned Lord, Lord Denning, when we considered this matter in Committee was that in nearly every case in real life it will be found that she will be too late. This is because if a woman sees that her marriage is in danger of breaking up, which she does not want it to do, the last thing in the world she wishes to do, or ought to be encouraged to do, is to start legal proceedings against her husband because

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that is more likely to be inimical to the continuance of marriage than anything else. Therefore she does not.
It is invariably the man who goes to his solicitor first. If a man is thinking of leaving his wife and going off with another woman, he will be told under the proposed Amendment, "All you have to do is sell the house straight away over your wife's head, then there is nothing that she can do." That is why the Bill departs to this extent from the recommendations of the Royal Commission. It was strongly felt that what was recommended by the Royal Commission, that a wife should have the right if she once went to the court and got an order, did not really give the wife sufficient protection; but the simple scheme which the Bill puts forward enables her to have a charge from the start and to register it when she thinks it right.
It is suggested in the Amendment that there would be no charge at all until she had been to the court and got an order, though it provides for the possibility of the wife's registering a priority notice in anticipation of her obtaining an order; the effect of the priority notice being that if she does in fact later obtain an order from the court, within six months, her charge will take priority from the date of the registration of the notice. This is a little odd, because this is not the present purpose of a priority notice at all. The priority notice is used at the moment where you have a charge. And the object of the notice is to enable you to obtain priority for your charge from the date that the charge was presented, as against another charge. Under the Amendment there would be nothing to prevent a wife from registering a priority notice, and then at the end of six months registering another priority notice, and doing so every six months. This would indeed clog the dealings in property, and do so very much more than would be the case under the Bill as it stands. This is due to the fact that the Amendment proposes to use priority notices for a wholly different purpose from that for which they were originally devised.
I submit that the Bill proceeds on the much simpler basis of giving the wife, by virtue of her position, an interest in the property which by registration is
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valid even as against purchasers for value. If the husband will not sell the property, if the parties are wholly at loggerheads and the husband refuses to join in a conveyance, she can in any case go to court, but in the ordinary way registration of a charge should cause no difficulty or embarrassment. For these reasons, I submit to your Lordships that the protection purported to be given by this Amendment would be not nearly sufficient protection.
There is also a technical point on the Amendment in that a wife who was contemplating applying to court for an order against her husband and wanted to get a priority notice or caution discharged, would have to have the husband's certificate in the case of registered land, and it would be very unlikely that the certificate would be in the possession of the husband. But this is merely a technical point. On these grounds I submit to your Lordships, on behalf of the Government, that this is an Amendment which would deprive the wife of almost the whole of the protection which she would otherwise have been afforded by this Bill.
3.52 p.m.
VISCOUNT DILHORNE: My Lords, I have listened with interest to what the noble and learned Lord the Lord Chancellor has said. I must say that I cannot agree with his conclusion, for reasons which I shall indicate. The noble and learned Lord began by making some observations with regard to the procedure of this House. I imagine that the inference from that was that my noble friends and I should not have tabled this Amendment, as the point raised by it is usually discussed in Committee. Of course, this is a Committee point and not one that would be raised in great detail on Second Reading. The Second Reading of a Bill serves a useful purpose but a quite different one from the detailed consideration in Committee and on Report.
When we came to consider this point in Committee it was at a late hour, but we had a useful discussion which threw up certain points. Then, it is true, we had a Division, but the numbers in the House were so small at that time that if two fewer had voted the matter would inevitably have come before the House on another occasion. That is another reason why I think we are fully justified in bringing this point again to the notice

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of the House. It is a narrow point, but an important one. I have always believed that just as the Committee stage can, so also the Report stage of a Bill can serve a very useful purpose if we are going to get our legislation in proper order.
The noble and learned Lord the Lord Chancellor spent some time in a general disquisition about the law of divorce and about community of goods and all that. I am not going to follow him into that discussion, because this point is much narrower than that. None of us in this House, I think, disputes or wishes to challenge the proposals in Clause 1 of the Bill. I certainly strongly support that the spouse should have the rights of occupation which are there given. But in Clause 2 we are dealing with the rights of a spouse in relation to the rights of third parties, and that is very important. I, for one, would want to see the wife get adequate protection. As my noble friend has said, it is a question of striking a balance between giving the wife adequate protection and avoiding impeding the easy transfer of property. It is a difficulty, I know, to decide where that line should be drawn. But if I did not think that the proposal we are putting before your Lordships gave adequate support and protection, I certainly should not commend it to your Lordships.
I know that I differ in opinion from the noble and learned Lord the Lord Chancellor, who thinks that the wife can get adequate protection only if she is in a position immediately after the marriage to go and register this charge, so that it will have priority over any subsequent disposition of or charge upon the property. I cannot think that that is necessary. The number of deserted wives who find that their former husbands have treated them so atrociously as to dispose of the matrimonial home to their mistresses or to someone else is surely very small. These cases when they occur are very distressing and sad, and I certainly think that that spouse deserves full protection. But is it necessary to go from that and argue, as was argued in the course of our earlier debates, that it ought to be a regular course for this charge to be registered immediately upon marriage? That does not look very hopeful as to what is going to happen about the marriage in future. I myself do not welcome the idea that after going to the
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church, and perhaps before going to the reception, a couple should go to the Land Registry Office and register a charge, and I cannot believe that it is necessary.
The Royal Commission on Marriage and Divorce considered this, and I should like to draw your Lordships' attention again, if I may, to the sentences they used about it. They said (paragraph 665):
"To give the deserted wife complete protection it would he necessary to give her a right, as against all the world, to stay on in the matrimonial home until ordered to leave by the court. The decisive objection to that course, in our opinion, is the unsatisfactory and insecure position in which it would place third parties. It would be necessary, for instance, for a would-be purchaser of a house, or for an intending mortagee, to make full inquiries into the matrimonial circumstances of the owner before the transaction could be safely completed. On the other hand, to give the wife a right merely against her husband personally would be equally unsatisfactory in as much as she would then have no protection against her husband's disposing of her husband's interest in the home to third parties."
The Commission continue:
"We have adopted a middle course."
The middle course they recommended was that the wife should get protection on desertion by going to the courts. I do not think that that goes quite far enough because, as the noble Baroness has pointed out, it might be too late. And we recognise that. Therefore, our Amendment goes a little further than the Royal Commission, but the reasons which the Royal Commission put forward cannot be lightly brushed aside by suggesting that there are a great many other matters to consider.
We are now told, I believe for the first time, that the Law Commission have been consulted about this and that they agree with the views put forward by the noble and learned Lord the Lord Chancellor. If the Law Commission have been consulted about this and have reason for dissenting from the considered opinions of the Royal Commission, it would certainly have been useful for this House to have been informed of the reasons of the Law Commission for that dissent, and to have an opportunity of considering them. But we have not been told, except through the mouth of the noble and learned Lord, and of course I agree that we should give weight both to the noble and learned Lord's views and to those of the Law Commission. But is it really necessary, for the protection of

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the few cases where deserted wives may run the risk of having the matrimonial home sold over their heads, to give this right to every spouse from the day of marriage? And if that is not necessary, where does one draw the line? I suggest that this Amendment gets its about right.
The noble and learned Lord the Lord Chancellor had some fun with the expression "priority notice" and said that it was not what a priority notice usually was. Does that matter? How this Amendment is intended to work is, I think, quite clear. Without going to the court for an order—and that is what the Royal Commission suggested—the spouse can at any time go and register a priority notice. That means that if she has reason to suppose that her position is getting in danger, there is no need for her to go to the court to get protection at the beginning.
The noble and learned Lord the Lord Chancellor says that women are reluctant to go to the courts. I am sure they are; and it would be a bad thing from the point of view of the marriage. But here this registering of a priority notice can be done without going to the court. And then, if within six months of that registration she gets an order of the court, the charge is effective not only for the six months' period preceeding that order, but also from then on. So she can get protection without going to the court. But the protection will lapse, if she wishes it to lapse, by her not going to the court at the end of six months. If she feels that the situation is not so acute that going to the court is necessary, she can then serve another priority notice and have it registered. I cannot see any real objection to that.
So it seems to me—and I do not speak with anything like the authority on these matters that my noble and learned friend Lord Wilberforce does—that by this machinery one can provide adequate protection for the wife without going to the full extent that the noble Lady wishes in this Bill; that is, to make such a charge applicable from the date of marriage in all cases, a suggestion which was emphatically rejected by the Royal Commission in this Report.
It is for those reasons that I support this Amendment. It is, I think, a narrow but an important point. I hope the noble
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Lady when she follows me, as I expect she will, will not suggest for one moment that my noble and learned friend and I and those who think with us on this matter are not just as keen as she is to see that the case of the deserted wife is fully covered.
BARONESS SUMMERSKILL: My Lords, I must agree with my noble and learned friend the Lord Chancellor—
VISCOUNT DILHORNE: Would the noble Lady forgive me? I should like to fulfil a promise. The noble and learned Lord, Lord Denning, asked me to say how sorry he was that he could not be here this afternoon owing to the fact that he was sitting judicially. There were great chances at one time, of course, that the rest of us could not be here this afternoon, but, fortunately for us, it did not work out that way. I want to add one point that I had forgotten. The noble and learned Lord the Lord Chancellor said that the Committee were assisted by the noble and learned Lord, Lord Denning, on the Committee stage. Indeed, we were. But I think it is the case that some of what the noble and learned Lord, Lord Denning, said misconceived the position; and that is another reason why we should bring it before the House again. The noble and learned Lord in the Committee stage said:
"This proposed Amendment will destroy that protection altogether, because she will not get protection unless she has already gone to the court and got an order before the husband sells to his mistress, or whoever it may be."—[OFFICIAL REPORT, Vol. 275 (No. 27), col. 646, 28/6/66.]
That misconceives this Amendment, because under this Amendment she can get protection by registering the priority notice.
4.4 p.m.
BARONESS SUMMERSKILL: My Lords, I find it difficult to understand why the noble and learned Viscount and his friends have put down this Amendment to-day, because the principle involved in it is exactly the same as the one which we debated at length last week; and although I agree with the noble and learned Viscount that there may not then have been many Members in the House, nevertheless, the Amendment was defeated by a substantial majority. Incidentally, as my noble and learned friend the Lord Chancellor had said, most

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of the Members who voted on that occasion were from the Opposition Benches.
What is the object of this Amendment? It is to ensure that a deserted wife's rights of occupation of the home should become a charge on the husband's interest, not from the date of the marriage, nor from the date when the husband acquires his interest, as provided by Clause 2(1), but only from the date when the wife obtains an order conferring right of occupation. In other words, it means that the Amendment provides that the marriage must be in danger of breaking up before a wife can register a charge following an order of the court. In view of the fact that before the marriage is in: danger of breaking up there must have been many trivial quarrels and many major quarrels, surely the husband, unless he is mentally defective, must realise that perhaps the marriage will end and, therefore, he must take action.
Our argument, therefore, is that, although it may look well on paper that the woman has this right when the marriage is breaking up, common sense tells us that a husband will see that the marriage is going to break up and will make arrangements to dispose of the property. I am advised that he could hand it to his mistress, or hand it to a relative; indeed, he could just write a letter overnight saying: "This is yours." Therefore, what protection has a woman if you tell her, as the Amendment does, to wait until the marriage is nearing the end and then she can take action?
Those are the fundamental objections to this Amendment: the need to obtain an order of the court before it becomes possible to register a charge. Again, I want to point out that you are putting the woman in the position of having to decide whether the deterioration of her marriage has reached the point where one day she has to say to herself: "Was that row last night the final one? Should I go to the court this morning?" As I said on the last occasion, the lawyers agree that women hate going to the courts, and they go only in the last resort. We are asking the House to protect the woman before the trouble occurs. It will be undesirable that she should go to the court (I want to emphasise this point) because, after all, we all finally want a reunion.
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I listened to my noble friends on this side of the House cheer when my noble and learned friend on the Woolsack said that it was not in the interests of the marriage to go to the court, because her husband would not like that kind of publicity. I want noble Lords to realise what will happen when she decides to go to court. She will tell her relations, of course, and the publicity will be of such character that the husband will not be anxious for a reconciliation.
To meet the objection that a wife might not apply to the court until it was too late to stop her husband from disposing of the property, this Amendment provides for the possibility of the wife's registering a priority notice in anticipation of her obtaining a court order, the effect of the priority notice being that if she does obtain an order from the court within the next six months her charge will take priority from the date of registration of the notice. I want to prove to the House that this proposal goes too far or not far enough. If, as is only too likely, a wife does not think of registering her priority notice until the state of the marriage is such that she has the possibility of an application to the court in mind, then, as I have said, it may well be too late for the notice to be effective against anyone who acquires the property from the husband.
I want to say to the House that the break-up of a marriage cannot be related to any specified time. Last week, noble Lords came to the House with an Amendment which, instead of six months, as in this Amendment, suggested one month, and I said that it was grossly unfair to ask a woman to have to decide in one month whether she and her children should leave the home or apply to the court. This time the period of one month has been changed to six months. Again I say that we cannot consider any calendar period when we are considering how long it takes for a marriage to break up. For the sake of the family, the decision of the wife must not be hurried. It is not in the interests of the children to make six months the period in which a mother must decide to separate from her husband. There can be quarrels and recriminations, ending in temporary forgiveness.
I would remind noble Lords—because always we are honoured by a number of

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Judges on these occasions—that the Judiciary itself has already shown itself aware of the unpredictability of human nature by refusing, other than in exceptional circumstances, to grant a divorce to a couple whose marriage has not lasted three years. The Judiciary are so much aware of all the imponderables in marriage that they have said that it would be wrong to grant a divorce before the couple have had time to adjust themselves to marriage; before they have had time to get over the initial quarrels and misunderstandings.
VISCOUNT DILHORNE: Would the noble Lady forgive me—
BARONESS SUMMERSKILL: In a moment. I should like to finish my sentence. The Judiciary themselves have decided that three years is an adequate time in which the couple can try to reconcile their problems.
VISCOUNT DILHORNE: Would the noble Lady forgive me? She should be aware that it was not a judicial decision that decided that point. It was decided by Act of Parliament, by this House and another place, with the Royal Assent. Therefore, observations about judicial decisions seem to be outside the point, and wrong.
BARONESS SUMMERSKILL: I am surprised at the noble and learned Viscount's interjection. Here we have a Bill going through Parliament which concerns the Judiciary, and what have we had? On the Second Reading last week, and again this week, a number of learned Judges have come here to make their contributions. Does the noble and learned Viscount tell me that when this other Act of Parliament went through, which had to be interpreted by the Judiciary, they were quiet and said nothing? I am not a lawyer, as I have told the noble and learned Viscount, but he must realise that when he gets up and makes these sweeping statements there are some of us with sufficient common sense to realise that there is no basis for them.
I should like to relate this Amendment of six months to the realities of life. A marriage has not been going well, and the wife registers a priority notice. It is July now. Very well. Let us say that she registers the notice at the beginning
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of July. This is a public warning to her husband, and it is not calculated to improve relations. The husband may therefore plan to outwit her, in order that she may not get the home—and this, I can assure your Lordships, presents no difficulties when the man is dealing with a mother with children. She gets her priority notice at the beginning of July. He suggests that the family should go to the seaside in August, and she is lulled into a false sense of security. In September she is busy with the children at school, and there is still the glow of the August holiday with her. Soon, Christmas is in the air, and the six months have elapsed. She must then, in that atmosphere, obtain an order of the court if she is to retain her home.
How many women would be prepared to upset the family at such a time, even though the wife might suspect that she was living in a fool's paradise? A woman in that situation hopes always that she may be able to restore harmony in the home. Yet the day after the six months has elapsed, let us say at Christmas, at the end of the year, and no court order has been sought by the wife, the husband is at liberty to sell the house over her head. He has only to bide his time. I would say that this Amendment fails to give the gentlest and most forgiving wives protection: it completely fails, just as the one-month period did last week. I then persuaded your Lordships to reject it. But I suspect that the learned Judges go away with their brilliant brains and never consult a simple mother and housewife. I suspect that if they did, if they invited some devoted mother with three or four children to come and talk it over with them, they would not have put this arid Amendment on the Order Paper. For it does not touch the lives of people and, if anything, seeks to destroy the home and gives the wife or the husband no opportunity for a real reconciliation. But noble Lords who want the Amendment insist that she should go to the court; they insist that she should tell the whole of her family and telephone her mother; and by the time that has been done there is no chance of a reconciliation.
I should like to put another point to the noble and learned Viscount. If, on the other hand, a more astute wife, less gentle, less forgiving, in order to protect

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herself registers a priority notice without any real intention of applying to the court, and re-registers a fresh notice every six months, it would put a clog on dealings with the property of just such a kind as the noble and learned Lord, Lord Wilberforce, said last week that he feared would be the result of the Bill. Have noble Lords realised that, from the administrative point of view, there is a major defect in the Amendment? I felt it was effrontery last week when I pointed out three defects, and the noble and learned Lord, Lord Wilberforce, had to come and say that they had put them right for me this time. Now I have to come and tell them that, administratively, there is such a defect that they are all defeating their object. By introducing this Amendment in this way they are completely tying a man's hands.
I hope they will not say to the House, "We will go away and bring it up again on Third Reading." If that is to be their attitude, we really must protest, for the Amendment, I would point out, makes no provision to enable the husband to obtain the cancellation of a priority notice before it expires. This is due to the fact that the Amendment proposes to use priority notices for a wholly different purpose from that for which they were originally devised, namely, to secure priority for a charge from the date of its creation, notwithstanding that it is not registered until later. The Amendment would use the system of priority notices to give priority to a charge before it is even brought into existence. I have, I hope, shown that the Amendment is inhuman; that it gives no protection to a wife; that it is technically defective and, indeed, gives no protection to the husband.
Now I would speak about the Bill. The Bill proceeds on the much simpler basis of giving the wife, by virtue of her position, an interest in the property which, by registration of the land charge, is valid even as against purchasers for value. It is unrealistic to suggest that the need to register the charge will impose heavier burdens on the wife than the system proposed by the Amendment. All that is involved—and the noble and learned Lord the Lord Chancellor mentioned this—in registration is the completion of a simple application form (with a statutory declaration, if the appli-
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cant is not represented by a solicitor) and the payment of a fee of one shilling. This can be contrasted with the cost of an application to the court as proposed in the Amendment. It can also be contrasted with the embarrassment which an application to the court would probably cause to the wife where the parties were not living at arm's length. Registration of the charge would not cause any difficulty or embarrassment at all; indeed, it might become common practice, as the noble and learned Lord, Lord Denning, urged on Second Reading, for the wife to register her charge as soon as the matrimonial home was acquired, and this should not cause any complication or difficulties in the event of a husband wishing to dispose of the property.
I emphasise this last point. If the parties are living in amity, if the wife is friendly with her husband, she will agree to release her charge in favour of any purchaser or mortgagee, and she can do this either by concurring in the sale or mortgage to release her charge or by lodging a notice of cancellation with the Land Registry and paying a fee of one shilling. If the wife refused to release her charge the husband would be able to apply to the court for an order under Clause 1 which would have the effect of bringing her rights to an end. I would say this to those noble Lords who have put their names to this Amendment. In their desire to avoid giving the wife rights to the home before the break-up of the marriage can be predicted, they have devised a scheme which not only will fail to give the wife adequate protection but may well also introduce into any dealings by the husband complications which cannot arise under the Bill. They agree with the principle of Clause 1, which gives a wife the right to occupy the matrimonial home as part of the status of marriage; but if this principle is right, effective means must be devised for its implementation, and these means are embodied in the Bill. No objection can reasonably be taken to the proposal to give the wife an automatic charge on the property, provided the interests of the third parties are suitably safeguarded. This is what Clause 2 does, for all that a would-be purchaser or mortgagee has to do is to make a search in order to see whether the wife has registered her charge.

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Finally, may I just say this to the House: in almost every other country in the world—let us say less civilised than us, less affluent than us—the law protects the deserted wife. In most countries each partner may take out of the marriage what he or she brought into it, and property acquired during the partnership is shared equally. This rule applies in the Scandinavian countries, in West Germany, France, Spain, and in many of the States of the United States of America. I am not even asking for legislation such as obtains in those countries. This Bill does not confer joint ownership; it only establishes the right to a home for the deserted wife. Surely it should be inherent in marriage that a wife and mother should have the right to a home. Are the women of this country asking too much in seeking the protection enjoyed by women in less affluent societies?
4.25 p.m.
LORD DERWENT: My Lords, I apologise for addressing your Lordships for the third time on this point, but this is a matter which, by and large, will affect only laymen, and as I have taken part in this Bill and being, except for the noble Baroness whose Bill it is, the only layman who has so far intervened, I thought it proper to say something from the lay point of view. What has been said which is purely law I shall leave to the noble and learned Lord, Lord Wilberforce, to answer.
The only thing I would say in regard to the speech made by the noble and learned Lord who sits on the Woolsack—and indeed to the noble Baroness—is on this question of the Report stage and the Committee stage. The object of the Report stage is that if we have not got our Amendment right (and we all agree that at the Committee stage we had not got this Amendment quite right) we should be able to get it right at the Report stage. That is all I am going to say about that. I very much regret that the noble and learned Lord, Lord Doming, is not here to-day because we had a little argument about a point that I am going to raise, and I want to refer to something he said; but it will be in a pleasant manner and in answer to the argument he put up.
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We have listened to three speeches from the noble Baroness and two from the noble and learned Lord, Lord Denning, and it is quite clear to me that we husbands are a pretty awful lot. We frequently desert our wives, and we evict them at the drop of a hat; and, I take it, at night, when there is snow on the ground. All right, my Lords: we know that there are husbands who do that, and they are adequately dealt with under Clause 1. We fully approve of Clause 1, so that all this further talk from the noble Baroness in two speeches, particularly on the Committee stage, about desertion and eviction, does not in fact come in to what we are talking about.
We husbands have another nasty habit, too: we are very apt to sell the matrimonial home, or give it away, over our wives' heads, without their knowing anything about it; and it is that, and nothing else, that we are talking about now. We know that there are these cases. We know there has been one case in particular, the Ainsworth case, which has caused all this trouble; and the noble and learned Lord, Lord Denning, told us that there have been other cases, though even he, I think, was forced to admit that the cases were not very many, and that there were even fewer cases of that kind in which the court was unable to give protection to the wife.
So we are dealing, as the noble and learned Lord, Lord Hodson, said last time, with a comparatively few future cases which mayor may not occur. On the other hand—and this is the point—we may be creating great inconvenience for hundreds of thousands of married couples when it comes to dealing with their property. I raised the point, and the noble and learned Lord, Lord Hodson, raised the point, last time in this Amendment we are concerned with comparatively poor people. If a rich man sells his house over his wife's head she, if she is wise, while these things are going on, trots off to the Ritz and stays there until her lawyers send in the bill. The rich are not going to suffer, whichever way we deal with this clause. We are dealing with the sort of people whose only asset is the matrimonial home. It may be their only capital asset on which they can raise money; and that is quite common, particularly among young married people. It is these people who will be put into

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difficulties if we do not amend this clause, particularly—and I repeat this—particularly as regards raising a mortgage or obtaining an overdraft from the bank.
The noble and learned Lord, Lord Denning, pooh-poohed this idea about it being difficult to raise mortgages. He said that it was really quite simple; that the only thing one had to do was to put the wife's name in the mortgage. I thought he was wrong, but I did not like to contradict him at the time. Yesterday I took the trouble to go and talk to one of our most important land and estate agents, who is also the director of a building society. He tells me that it certainly will not make it any easier if we do not amend this clause, and in many cases it will make it more difficult, because they are not very fond of including the wife in a mortgage if she has no property of her own, if the basis on which they grant the mortgage, apart from the building, is what the husband is earning. Because, from their point of view (I am talking purely from their point of view), if the husband, and he is the man who is earning the money, disappears—and that is not unknown—they may have to bring two actions if the wife is joined with the husband. A more important thing as regard mortgage which I had forgotten was pointed out to me; very often, always if possible, I think, the mortgage is raised before marriage, the husband taking it out in the engaged days. The girl cannot be joined with him at that time. If possible—they cannot always afford it—they like to have the house ready for coming back to after the honeymoon.
BARONESS SUMMERSKILL: My Lords, I think the noble Lord has been misinformed. The mortgage he is talking about that is taken out earlier has priority.
LORD DERWENT: It has been taken out earlier, but once they are married it has not got priority if the wife registers, and that is the question: whether from the word "Go" the mortgagees grant the mortgage. The way they look at it is this. They know they always run a risk with any married man if he is their only surety. The husband may lose his job. They take everything into consideration. If they do it from the word "Go" there is a slightly greater risk for them. But the
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much greater risk is when a loan is raised in a difficult time from a bank.
May I put it from the other point of view, under the clause as it stands if the Bill is unamended? I take the instance when the husband uses this clause against the wife, and I hope to hear the noble Baroness's comments on that. The picture I have in mind—it is not unusual—is where the house belongs to the wife, left to her by her father. The husband is the wage-earner. The wife may perhaps be, if the noble Baroness can imagine it, a somewhat bossy type, who holds the purse-strings and rather rules the roost. One day, like other women and men before her, she becomes rather extravagant, goes to the bank and says to the bank manager, "I want an overdraft", and he says, "What is the security?". She says, "My house".
He will now say, "Yes, that is all right; but you have to get your husband to sign this form saying that we take priority over his interest", which he would have under the clause as it stands. She goes home with the form in her hand and in at the front door, and says "Henry, come here". He meekly comes in and she says, "Sign there"; and at last the henpecked worm turns and says, "I want to read it". He reads it and says, "No". What will the noble Baroness's comments be on that day? The brutal husband! This is a serious problem, but it is only a serious problem for the poorer people who have no other assets that they can manipulate. I again say that I think it is going too far to say that matrimonial property can be tied up from the word "Go" for these people. It may make things very difficult for them.
Now we come to the question, finally as far as I am concerned, about the six months. The noble Baroness has suggested that we husbands are in a position suddenly to say, "I have got a mistress. Let's give my house away, or sell it". You can give it away quite quickly. If you are going to sell it, it takes a little longer. I cannot believe that any wife in her senses does not know that something is not going quite right, and that is the moment for the wife to go and have a priority registered, at that moment. If she will not do it then, she will not do it when she gets married. If, of course, as my noble and learned friend Lord Dilhorne said, it is the

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intention that they should all run round on the way to the wedding reception and sign, well and good. But that is not the idea. Very few wives, particularly of the poorer kind—the richer ones may do it because they would be advised by solicitors—are going to register until some trouble comes up or is in the offing. Then they go and register. At the end of six months things may be going better, they may be going absolutely all right; they maybe not quite all right. Then she can go and re-register. But there is a limited period in which handling the property is fully protected. I suggest that we are acting here for very few cases in which this sort of thing happens—selling over the wife's head without her knowing about it. To cover the very few cases which are likely to happen we are making things difficult, particularly in difficult times, for hundreds of thousands of other married couples, which I do not think we ought to do.
THE LORD CHANCELLOR: My Lords, the noble Lord said that the priority notice would give her protection. I do not know whether he appreciates that if the Amendment is passed she has no interest in the property, no charge and no protection at all unless and until, if she can afford it, she goes to the court and gets an order. If she gets an order, then the priority notice may have some effect; but she has no protection of any kind at all unless and until, if she can afford to do so, she goes to court and gets an order.
LORD DERWENT: For all practical purposes that gives her protection, because she is then in a position to go to the court, if the worst comes to the worst, and she then has protection from the original date. Unless the priority notice is put in she does not have protection from the original date. All we are arguing about here is dates. If she goes to the court, with this priority notice, she in fact gets protection which she would not have otherwise, even when she goes to the court. I think I am right.
THE LORD CHANCELLOR: The noble Lord said that all we are talking about is dates. No doubt he appreciates that under the Bill as it stands she gets protection without having to go to the court for an order.
LORD DERWENT: I entirely understand that—at the expense of many hundreds and thousands of other married couples.
4.38 p.m.
VISCOUNT BARRINGTON: My Lords, as a layman who is puzzled by several points which I thought I understood at Committee stage and to which I should like to hear the answer, may I put a few questions which I believe will make your Lordships' debate a little shorter? If there is one thing that is more painful than having to argue a subject of this kind four times, as the noble and learned Lord on the Woolsack has said, it must be to hear Back Bench speakers saying the same things over again, so I shall try to confine myself to what has been said to-day.
The point on dates seems to me the relevant point, because the whole matter turns—without the legal niceties, which are very important, but none of us except the lawyers are qualified to go into them—on whether this Amendment gives protection to a spouse or not. I use the word "spouse" because although I have understood up till now that this is not going to be a Party issue, the noble Baroness, I say with respect, did seem in danger of turning it into a sex war issue, in that she used the word "wife", whereas I was trying mentally and frantically to translate it into "husband". I am not a spouse, but I think that if I married the probability is that I should be a husband, and I like to think how it would affect me. It is because I do not believe it would provide me with proper protection against whatever harpy I might marry that these are the points on which I want to be reassured.
The noble and learned Lord, Lord Wilberforce, in his extremely clear statement, made two remarks—they are quotes, I think, from the Preamble, which I stupidly have not got. He said the Amendment was to protect deserted spouses, in effect, without damaging the property rights of those many thousands of married couples, spouses who are not threatened by a break-up of the marriage. I am not quite clear what is meant either by the words "deserted spouses" or by "threatened by the break-up of the marriage". If one is going to make this a question of statistics, does "deserted spouses" mean spouses who have been

1213
deserted, spouses who are conscious that they are going to be deserted, or spouses who are going to be deserted without being conscious of it? Putting myself in the last category, I have heard nothing that makes me happy about the position for them.
As to those who are not threatened by a break-up of the marriage, I speak as a layman because I think it is a point—I mentioned this before—on which a layman has as much right to express an opinion, and only an opinion, as the lawyers. How many married couples living now, or about to be born in the next 2,000 years, if this Act lasts so long, will be threatened by a break-up of the marriage? If a computer which was fed by Old Moore mated to a marriage bureau which had proper statistics, produced a child, that child might know the answer; but I cannot see how anybody else can know. Surely, on this question we are dealing with an uncertain number of people, and unless the Amendment provides protection in all cases, however many there are, I am not satisfied that it will be of any use.
The second point, and the only other point I want to raise, is the question which has been put extremely vividly and forcefully by the noble and learned Viscount, Lord Dilhorne, as to the inconvenience after a marriage ceremony and, as he said, before the reception, of rushing out to register a charge. I have not contemplated matrimony, but I have frequently contemplated death. I have always understood that it was the custom, and I think a not dishonourable custom, that a husband, before getting engaged or when the couple were engaged would make a will.
If I were an advocate in a court opposing that practice, and had considerable experience, I suppose that I could draw a hair-raising picture of a man proposing to a lady who, before telling her, "You have made me the happiest man alive", would leap up and dash into a taxi-cab, and race off, either to his solicitor or to find two witnesses to whom he was to leave no property in the will, and make a will. That is not what happens. But that would not, I think, be a valid argument against making a will when one is at the point
1214
of death, or is believed, rightly or wrongly, by doctors to be at the point of death: but it is a precaution. Nobody thinks that a young man is morbid if, at the age of 21, on getting married, he either makes a will or alters it; that is, in spite of the fact that the law, even in its unaltered form, gives a certain protection to spouses, I think of both sexes, as to what they receive in the event of death. That seems to me a comparable case; what the noble and learned Lord, Lord Denning, referred to as an ordinary thing to do.
Of course, not everybody would register a charge, just as not everybody makes a will. It would not be the kind of thing that a wife or a husband would sneak off to do. If they were detected in having done so, that would certainly cause a matrimonial row; and if either said openly, "Let me confess that I have done this, not because I think there is a danger of our marriage breaking up but because I thought it was a protection", I should think that that might also cause a row. I have not yet been convinced by any argument I have heard that anything substantially new has been raised, and, with the greatest respect, I must at present vote the same way as I did last time.
4.43 p.m.
LORD COHEN: My Lords, I shall detain your Lordships for but a short time. Indeed, I should not have found it necessary to speak if it had not been that, on the Second Reading, I said that I was unhappy, should the Bill go through as it is drafted, that it would become increasingly difficult to persuade banks and building societies to advance money for the purchase of matrimonial homes. Having listened to the debate, and having listened, in particular, to Lord Derwent, I am not entirely shaken in that fear. On the whole, however, I have come to the conclusion that the risk is not great; that it is not beyond the ingenuity of conveyancers—and I hasten to add that I am not one—to find a means by which, through joining the wife, the requisite facilities could be obtained: for instance, she could release any interest she might have. It would not raise the same difficulties as the noble Lord has mentioned.

1215
On the other hand, I am convinced by the observations of the noble and learned Lord on the Woolsack that the risk of failing to attain the objective for which this Bill is designed, and which is welcomed by all your Lordships—that of protecting the deserted wife—might easily suffer a serious setback if this Amendment were carried. I therefore propose to vote against the Amendment. It may be that there are few women who fall within the category of the deserted wife, but if the Bill is not carried, they will continue to suffer under a real grievance. I hope that your Lordships will not make it more difficult to protect them by carrying this Amendment.
4.47 p.m.
LORD CONESFORD: My Lords, I shall detain the House for a few moments only. Unlike nearly every noble Lord who has spoken, I find this matter difficult. I may say that I was here on the last occasion but, not having heard the whole of the argument, I did not vote. I certainly was not prepared to vote against the noble Baroness without further consideration after hearing the noble and learned Lord, Lord Denning, and the noble and learned Lord on the Woolsack. On the other hand, I was not prepared to vote then in her favour, because I had not had the advantage of hearing the noble and learned Lord, Lord Wilberforce. Since then I have given the matter a little further consideration. I was greatly impressed on this occasion by the argument of the noble and learned Lord, Lord Wilberforce.
There are only two matters which I should like to mention. One or two noble Lords, including the noble and learned Lord on the Woolsack, drew attention to the rather extraordinary fact that occasionally we vote again on the Report stage on a matter that has already been decided on the Committee stage. There is nothing new about that. On this occasion it so happens that what is thought the more liberal view prevailed on the Committee stage; but it is possible on the Committee stage for some black reactionaries like myself and the right reverend Prelate the Bishop of Exeter to triumph even if we are subsequently beaten on the Report stage. The right reverend Prelate may remember an occasion when he and I took the same
1216
view on an Amendment on the Legitimacy Bill. On that occasion I carried that Amendment on the Committee stage. But in a much fuller House I lost on the Report stage. I did not feel that I had any great sense of grievance; nor did I complain. I accepted the fact that in a much fuller House the other view had prevailed. There is therefore nothing novel of any kind, and I do not think there is even in another place, if a different view is taken on the Report stage from that which prevailed on the Committee stage.
Nevertheless, I was, I confess, very much impressed by the arguments of the noble and learned Lord on the Woolsack, reinforced as they have been by the noble and learned Lord, Lord Cohen. On the other hand, I cannot think that the matter is nearly as simple as was indicated by the noble Lady who found the whole scheme of the Amendment wholly absurd. It happens to be rather more in her favour than the scheme proposed by the Royal Commission on Marriage and Divorce. If noble Lords will turn to the chapter concerned, they will find the most weighty reasons given why the Royal Commission came to a conclusion which is adverse to the noble Lady. I can only say that I still find the matter difficult and, if it is forced to a Division, I am afraid that I shall probably again abstain.
However, I should like to make one proposal. The Lord Chancellor said that his view against the Amendment and what was recommended by the Royal Commission had been reinforced by some consultation which he had had with the Law Commission. I think that I have that right. It would be of great assistance to Parliament if we could have some statement of the Law Commission's view on this matter and the reasons why they differ so emphatically from the considered conclusions of the Royal Commission. That is all I have to say. I think the matter is a great deal more difficult than has been represented, and I am left in the greatest confusion by the discussion.
4.52 p.m.
VISCOUNT DILHORNE: My Lords, with the leave of the House, my noble and learned friend Lord Wilberforce asked me to apologise for the fact that

1217
he could not be here at the end of this debate. I dare say the noble Lady will welcome that if there is, as I think there will be, a Division. May I, with the leave of the House, reply to some of the points which have been made? I am sorry the noble Lady thought that this Amendment should not have been moved at all. It is a difficult point and an important one; it is also a narrow one; but to suggest that it was wrong to raise it and that we were putting it forward as a wrecking Amendment is, in my view, quite unjustified and wholly wrong. I was also sorry that she had apparently failed to appreciate almost completely what this Amendment sought to provide. It goes further than the Royal Commission's recommendations. There, it is true, the protection can only arise when an order is obtained, but here by the giving of the priority notice the woman can safeguard her position.
THE LORD CHANCELLOR: My Lords, the noble and learned Viscount says that, but is it not the fact that unless and until she obtains an order she has no protection, though the priority notice, if and when she can afford to go to the court and get an order, can ante-date it?
VISCOUNT DILHORNE: I said safeguard her position, and I use those words advisedly. She gives her priority notice and then when she goes to court she gets the order and the order dates back to the date of the priority notice. So her position is safeguarded from that date and will take priority over any charge placed on it after that date. It is true that it will not become effecive until she gets the order, but then she has got to get an order under Clause 1; we are here dealing with Clause 2. The noble Lady, who makes such a fuss about going to the court to get an order, in her Bill under Clause 1, in relation to the right of occupation, has the clearest pro-

CONTENTS

Ailsa, M.

Dudley, L.

Ironside, L.

Ampthill, L.

Effingham, E.

Kemsley. V.

Atholl, D.

Erroll of Hale, L.

Massereene and Ferrard, V.

Bessborough, E.

Ferrers, E.

Merrivale, L.

Boston, L.

Fortescue, E.

Redmayne, L.

Buccleuch and Queensbury, D.

Fraser of Lonsdale, L.

St. Helens, L.

Clwyd, L.

Fraser of North Cape, L.

St. Oswald, L.

Colville of Culross, V. [Teller.]

Grenfell, L.

Soulbury, V.

Croft, L.

Hayter, L.

Stonehaven, V.

Derwent, L. [Teller.]

Hereford, V.

Strathcarron, L.

Dilhorne, V.

Horsbrugh, Bs.

Strathclyde, L.

vision for going to the court to get an order.
The difference really, as I see it—and I am sorry to differ from the noble and learned Lord the Lord Chancellor and from my noble and learned friend Lord Cohen—is this. Is it really necessary to go so far as to give this general right, subject to no limitation, to every married spouse to provide a protection, for the few sad cases of the deserted wives who may be deprived of the matrimonial home? I do not believe it is, if you can devise a satisfactory alternative procedure, and that I think we have done. It is a narrow point. It may well be that even if the noble Lady gets the Bill in its unamended form, a lot of women will not make use of the power until they think their marriage is threatened. Under our Amendment they will not make use of the power to file a priority notice until they think their marriage is threatened. It may be that in practice this will work out in somewhat the same way, but the difference, as I see it, will be that, if the Bill is carried unamended, it will lead to many inquiries being made by the third parties, and will involve additional investigations and expenses.
I thought the first speech of my noble and learned friend Lord Cohen, when he spoke about the difficulties the banks would have, and so on, was a little more convincing than the speech which he has made to-day which has apparently convinced him that he was wrong. Having said that, I think the best thing is not to debate the matter further, but to proceed to a Division and to see what the opinion of the House is on the issue which I now hope has been made clear.
4.59 p.m.
On Question, Whether the said Amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 37; Not-Contents, 54.

Swinton, E.

Vivian, L.

Teynham, L.

Wakefleld of Kendal, L.

NOT-CONTENTS

Addison, V.

Exeter, L. Bp.

Pargiter, L.

Archibald, L. [Teller.]

Faringdon, L.

Plummer, Bs.

Auckland, L.

Gardiner, L. (L. Chancellor.)

Rhodes, L.

Barrington, V.

Gridley, L.

Rowley, L.

Beswick, L.

Hanworth, V.

St. Davids, V.

Boothby, L.

Hughes, L.

Shackleton, L.

Brockway, L.

Kirkwood, L.

Shepherd, L.

Burton of Coventry, Bs.

Latham, L.

Sinha, L.

Campbell of Eskan, L.

Leatherland, L.

Sorensen, L.

Champion, L.

Lilford, L.

Stonham, L.

Chichester, L. Bp.

Lindgren, L.

Strang, L.

Citrine, L.

Listowel, E.

Strange, L.

Cohen, L.

Longford, E. (L. Privy Seal.)

Strange of Knokin, Bs.

Crook, L.

Maelor, L.

Summerskill, Bs. [Teller.]

Darwen, L.

Mitchison, L.

Swanborough, Bs.

Douglas of Barloch, L.

Morrison, L.

Taylor, L.

Elliot of Harwood, Bs.

Moyle, L.

Wade, L.

Emmet of Amberley, Bs.

Moyne, L.

Williamson, L.

Resolved in the negative, and Amendment disagreed to accordingly.

BUILDING CONTROL BILL
5.5 p.m.
Brought from the Commons.
LORD SHEPHERD: My Lords, I beg to move that this Bill be read a first time. No doubt the House will have noted that this Bill has been set down for Second Reading next Tuesday, and I hope that the House will agree to take the Second Reading on that day.
Moved, That the Bill be now read 1a.—(Lord Shepherd.)
On Question, Bill read 1a, and to be printed.

DOCKS AND HARBOURS BILL
Brought from the Commons.
LORD SHEPHERD: My Lords, I beg to move that this Bill be read a first time. This Bill has been put down for Second Reading on Monday, and I hope that the House will agree to that procedure.
Moved, That the Bill be now read 1a.—(Lord Shepherd.)
On Question, Bill read 1a, and to be printed.

BOTSWANA INDEPENDENCE BILL [H.L.]
5.7 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(Lord Beswick.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clauses 1 and 2 agreed to.
Clause 3 [Consequential modifications of British Nationality Acts]:
THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR COMMONWEALTH RELATIONS AND FOR THE COLONIES (LORD BESWICK)moved to leave out subsection (5) and to substitute:
"(5) So much of the British Protectorates. Protected States and Protected Persons Order 1965 as relates to former protectorates, and section 5 of the British Nationality (No. 2) Act 1964 in so far as that Order was made by virtue of that section shall have effect in relation to the Bechuanaland Protectorate as if that Order had been made immediately after the appointed day; and accordingly after the appointed day that Order shall have effect as if, at the beginning of Part I of Schedule 4 thereto, there were inserted in the first column the words 'Bechuanaland Protectorate' and in the second column the words ' Botswana Independence Act 1966, section 3(2)'".
The noble Lord said: The purpose of this Amendment is to enable Botswana to be treated immediately upon independence as a former Protectorate, for

1221
the purposes of the British Protectorates, Protected States and Protected Persons Order 1965. It would be in accordance with our policy in respect of former Protectorates to treat Botswana in this way. I am also informed that, if we did not so treat this country, we should be in breach of our obligations under the United Nations Convention on the Reduction of Statelessness, and the United Nations Convention on the Nationality of Married Women.
I ought perhaps to explain that the subsection which I am inviting your Lordships to delete would have meant that the position of the protected persons was covered by the procedure of an Order in Council. However, it might have been that the Order in Council was passed a week or two after independence, and during that time we should, technically, have been in breach of our international obligations. I suggest, therefore, that the revised form of words is a preferable way of dealing with this matter, and I hope that they will be acceptable to the House. I beg to move.
Amendment moved—
Page 2, line 38, leave out subsection (5) and insert the said new subsection.—(Lord Beswick.)
THE EARL OF BESSBOROUGH: I am grateful to the noble Lord for explaining the Amendment, which I think is quite acceptable to us, although the whole question of modifications of the British Nationality Acts is certainly extremely complicated—almost more difficult, perhaps, than matrimonial homes. But in order to clear my own mind, I should like to ask the noble Lord this question. Am I right in thinking that there are in Bechuanaland a number of citizens of the United Kingdom, and others who may have Commonwealth citizenship; and am I not right in thinking also that most people in Bechuanaland at present are British-protected persons? Am I also right in thinking that they will remain so after independence, and will thus continue to be eligible for the protection of the British Government when travelling abroad? This matter is so complicated that I should be most grateful if the noble Lord could give me an answer on those points.
LORD BESWICK: I quite agree with the noble Earl, Lord Bessborough, that
1222
this is a complicated matter. Indeed, I had some difficulty myself in ascertaining exactly who was likely to be affected by this clause. The noble Earl is quite right when he says that at the moment the protected persons in Bechuanaland are protected by Britain. They are British-protected persons.
THE EARL OF BESSBOROUGH: They all are?
LORD BESWICK: They all are. On independence, under the provisions of the new Constitution of Botswana, the overwhelming majority of them will become Botswana citizens and Commonwealth citizens, but there will be some who will not automatically acquire Botswana citizenship. They have previously been British-protected persons, but they will not automatically acquire citizenship of the new Botswana Republic. Those are the people whom it is sought to cover by this clause. Under this clause they will be enabled to retain the protection which they previously enjoyed. There are not very many of them, but, even if there are only a few, it is right that we should ensure that, at least, they continue in the position of British-protected persons.
As such, they will, as the noble Earl surmised, be able to travel on the passport of a British-protected person. They will not have the right of entry to this country, and they will not even have the right of entry into Botswana; but they will, at any rate, be British-protected persons, and in that capacity will have a passport. Many of them, I imagine, if they have had a connection with Botswana, will be able in the future, if they so wish, to acquire citizenship of the new Botswana Republic. They will not acquire it automatically. I hope that, with that rather complicated answer on what is a complicated question, the noble Earl will be satisfied, and will agree that this is a proper course to take.
THE EARL OF BESSBOROUGH: I think that is quite clear. I accept what the noble Lord has said, and I thank him.
LORD BROCKWAY: May I just ask one question? My noble friend the Minister said that those living in Bechuanaland were British-protected persons. There is a considerable number of

1223
residents there of South African nationality, and I am assuming that they did not come under the umbrella of British protector ship, and will not, after this Bill becomes an Act.
LORD BESWICK: There are some individuals—for example, those born in South Africa—who may have held South African citizenship but who also held the position of British-protected persons in Bechuanaland. On the independence of Botswana, it is quite likely that such people will not wish to take up their South African citizenship. It is such people to whom we should like to continue to give the status of a British-protected person. They could then, in the future, choose, on reflection, to maintain their citizenship of South Africa, or they could choose to travel on their passports as British-protected persons. That position they have enjoyed in the past: that position they will enjoy in the future, if this Amendment is accepted.
LORD BROCKWAY: I thank my noble friend for that answer.
VISCOUNT COLVILLE OF CULROSS: I think it would not be fitting if the rather specialised point the noble Lord, Lord Beswick, mentioned about the drafting of this Amendment went entirely without comment from this side. On one of the Consolidation Bills that were dealt with in the last Parliament, there was, if I remember rightly, a considerable amount of comment upon the amendment of an Order by an Act. Now this is being done again here. I understand that the reason for this is that the Order might not come into effect because of its having to be laid, for the requisite length of time, and that there would be a gap; but I think the House ought to note that, by this Amendment, a specific amendment is being made by legislation to subordinate legislation, and I suspect that this is not a matter that the House would look upon with favour. There are not very many noble Lords here, perhaps, who thought about this on the last occasion, but I would ask the noble Lord to treat this an an exceptional case if, from this side, we do not make any further reference to it to-day.
LORD BESWICK: I should like to have an opportunity of consulting my legal advisers on this point, but, as I under-
1224
stand it, this is not a question of amending subsidiary legislation; it is a question of superseding it for this purpose. Under the original form of words we should have been using the procedure of an Order in Council. Here, we are legislating specifically for—
VISCOUNT COLVILLE OF CULROSS: Unless I have misunderstood the Amendment, I do not think that that is what the Amendment says. What the Amendment says is that, accordingly, the Order shall have effect as if a certain amendment were made in the Order. Therefore, from the substantive part of this Amendment it seems to me to bean amendment to the Order. I do not wish to press this point. I have no doubt it has to be done because of the timetable; but I think it is a most undesirable thing to do in legislation, and I hope the noble Lord will make certain it is absolutely necessary and will also make certain that what I have said this afternoon is accepted as a warning against its creating a precedent for a future occasion.
LORD BESWICK: I will certainly read very carefully what the noble Viscount has said. I still think he is under something of a misapprehension, but I will have the point considered, and I will write to the noble Viscount about it.
On Question, Amendment agreed to.
Clause 3, as amended, agreed to.
Remaining clauses agreed to.
Schedule agreed to.
House resumed: Bill reported with an Amendment.

LAW REFORM (MISCELLANEOUS PROVISIONS) (SCOTLAND) BILL
5.19 p.m.
Order of the Day for the Second Reading read.
LORD HUGHES: My Lords, I beg to move that this Bill be now read a second time. It was in another Session—indeed, in another Parliament—that your Lordships gave consideration to a Bill almost identical to this one: but, despite that, it was a very short time ago. I think, therefore, I should be justified, in my remarks at this stage of the Bill, in commenting only on the points of difference between this Bill and its predecessor—and these, fortunately, are not many.

1225
The first is in Clause 3, and is little more than a matter of drafting. The clause empowers Her Majesty, by Order in Council, to vary the amount of wages protected from arrestment by the Wages Arrestment Limitation (Scotland) Act 1870 as amended. In the first Bill, we provided that this Order in Council should come into effect one month from its being made. The Editor of Statutory Instruments has pointed out that if we make this rigidly one month it could, on occasions such as holidays, make for difficulties. The intention is that it should come into effect approximately one month after being made and the alteration in the present Bill is to make the period not less than one month.
The other change in Clause 9 is of rather more substance. This clause deals with appeals by stated case in summary criminal proceedings. As the clause stood in the previous Bill, it enabled the High Court of Justiciary on application to extend the five-day period within which an appeal must be lodged. Noble Lords will remember that these provisions were introduced at the suggestion of the Scottish Law Commission which felt that the peremptory nature of the periods might cause unjustified hardships. During the proceedings on the previous Bill representations were made from the Law Society and from the Glasgow Corporation that the periods in the 1954 Act were, in themselves, unnecessarily short and might well be extended. It has therefore been decided that these periods should be extended and we are substituting in the present Bill ten days for the previous five. This obviously will have the advantage that it may well reduce the number of occasions on which the High Court would be asked to exercise their discretion. It would not necessarily eliminate them entirely and, of course, we retain the discretionary provision although the period has been altered to ten days. These are the only changes.
I should like to mention two other points which arose on the previous Bill. On the Second Reading then, the noble and learned Lord, Lord Guest, expressed doubts about a provision declaring that the statutory restrictions on accumulation applied in a case where trustees were permitted to accumulate income but were not under a duty to do so. He considered that this would represent a change
1226
in the law that might give rise to practical difficulties, and he proposed that the relative provisions should be dropped until some such body as the Scottish Law Commission had the opportunity of considering the matter. This was done and the Government have recently received the Commission's advice. I am at present in communication with the noble and learned Lord, Lord Guest, and I hope to be in a position to put down an Amendment for consideration at the Committee stage which would put into effect the advice we have received from the Law Commission.
The second point relates to the law of marriage. Your Lordships will remember that the noble Lord, Lord Inglewood, introduced a clause on runaway marriages and withdrew it on my indication that the Government were discussing, or would discuss, with the Scottish Law Commission the question of reviewing the law of the constitution of marriage in Scotland. It has now been decided that a Departmental Committee should he set up for this purpose, and the Government and the Law Commission are discussing suitable terms of reference and how the Commission may most effectively co-operate in the review. Should very much have liked to be able to-day to announce the final arrangements, hut on a matter so important as this it is obviously both desirable and essential that the terms of reference should be got right in the first instance, and it has not been felt wise to rush a decision on the matter merely to give me the pleasure of making the announcement to-day. I hope that when the noble Lord, Lord Inglewood, in due course reads these remarks he will feel that he did not on the last occasion cast his bread on the waters.
As I indicated when the earlier Bill was before your Lordships, the Government welcomed suggestions for improvement which were made and, in reintroducing the Bill, we acknowledge the value of the work that has already been done in your Lordships' House. I think I may add in commending it that the prompt reintroduction of the Bill is an indication of the importance which the Government attach to maintaining progress in the law reform field. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Hughes.)
5.25 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, it is really a pity that the noble and learned Lord the Lord Chancellor has had to leave the Woolsack for the moment because it would seem to me that, whereas, in regard to the last Bill but one with which we dealt, he was complaining about matters being trotted out on Report stage as opposed to the Committee stage, here we have had an opportunity to look at a number of rather complicated matters of Scottish law and even at this stage have found that not everything is quite right.
I would not wish to depart from the admirable example set by the noble Lord, Lord Hughes, or to do anything other than to comment on a few of the matters that he himself raised. The rest of the Bill was accepted by these Benches with a variety of enthusiasms according to the different matters and the different clauses which were dealt with last time. I see no reason to suppose that there has been any change of opinion, but I think we should be grateful for what has been said by the noble Lord this afternoon in making further explanations.
He says that the provisions of Clause 9(1) are new, as indeed they are; and this, I think, is a matter which requires general re-examination wherever it occurs. These very circumscribed time-limits for appeals and so on do cause trouble, and where they are very short and there is no power in the appellate court to grant a dispensation by way of application—where for some reason or another, very often not the unfortunate appellant's fault at all, the time limit has been exceeded—this is a matter which requires general reexamination. I hope that the Scottish Law Commission when it put forward this particular matter to be dealt with found this the only matter in Scottish law which requires similar reform. If there are others, no doubt we shall have another of these splendid hotch-potch Bills before very long to deal, among other things, with them.
I do not think that any comment need be made about the change in Clause 3. But I should like to say this about a
1228
matter which I do not think the noble Lord specified and which I think appears in Clause 6(2). As I understand it, the matter which purports to be declared by that subsection is not the same as that which the last Bill purported to declare; nor is it, indeed, what the law finally is at this moment—or so I understand from having read the debates and from what the noble Lord has said. I think, therefore, that we shall be interested to hear what he has to say if an Amendment is produced on the Committee stage. But we are doubtless extremely glad that on this matter he is still in consultation with the noble and learned Lord, Lord Guest, and perhaps also the noble and learned Lord, Lord Reid, because in that way we shall get it right, for they will be of much more help than I on this particular point.
I will draw the attention of the noble Lord, Lord Inglewood, to what the noble Lord has said about runaway marriages. I think the noble Lord is quite right in saying that the terms of reference are very important in this case because, as I recall it, not only was the particular matter discussed twice on two stages of the Bill and found to be of almost unbelievable technical difficulty, but we also considered whether the idea should be to try to bring Scottish law into line with English law in this matter or vice versa. I hope that the Committee which is going to look into this will keep in touch with the various bodies concerned in England. so that we do not find that this Committee in Scotland and whatever body will consider it in England are working in divergent directions. I think this would be only a renewal of the sort of trouble that was envisaged when my noble friend's Amendments were being discussed last time. Subject to that, I think my noble friend will be happy with what the noble Lord. Lord Hughes, has said; and I will certainly see that it is brought to his attention. With these comments. I hope that the Bill will be given a Second Reading and speedily pass the remaining stages, subject to the one remaining matter that still has to be cleared up.
5.30 p.m.
LORD FERRIER: My Lords, I think it would be proper to add to what the noble Viscount, Lord Colville of Culross, has said in welcoming the Minister's statement

1229
about a Departmental Committee which is to inquire into the point raised by the noble Lord, Lord Inglewood. I should like to supplement what was said by the noble Viscount, Lord Colville of Culross, about the importance of keeping in touch with the various bodies concerned in this intricate and urgent matter. At the same time, I agree that the very urgency of it should not interfere with the utmost care being taken in drafting the terms of reference. I support the Second Reading of the Bill.
5.31 p.m.
LORD HUGHES: My Lords, I think that all I need say in reply to the remarks of the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Ferrier, on the subject of the Departmental Committee to look into the marriage law is that I think this will not be a committee which will necessarily produce conclusions at lightning speed. The fact that consideration will be going on over a period, and at a time when consideration of the problem of marriage is being examined also in England and Wales, will inevitably produce a desire to have the marriage law of both countries brought as nearly as possible together. It does not follow that in every item it will be capable of being resolved on a basis of identical solutions, but I am quite certain that both bodies in both countries will be seeking to minimise the differences rather than to maintain any historical difference.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

POST OFFICE (SUBWAY) BILL
Read 3a (according to Order), and passed.

COMPANIES AND THE NATIONAL INTEREST
5.33 p.m.
VISCOUNT HANWORTH VISCOUNT HANWORTH rose to ask Her Majesty's Government whether, before dealing fully with the recommendations of the Jenkins Report on Company Law Reform, they will consider what further measures could be taken to provide an environment in which companies would be encouraged to work not only
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in the interests of their shareholders but also of their employees and the nation as a whole, having particular regard to the importance of exports and the needs of the consumer. The noble Viscount said: My Lords, this is a very broad Question, and I am not aiming to suggest any solutions to the problems I have raised—at any rate, no detailed solutions. Nor do I believe that there are any useful universal panaceas; if there were, I am quite sure that whichever Government had been in office they would long ago have found them and done something about them.
Perhaps this Question suggests a philosophy, and I believe this philosophy lies somewhere between the two extremes; the one, of course, being nationalisation continued into almost every area—which I do not believe that anybody thinks is practical at the present time—and the other extreme philosophy, the turning back to the industrial climate of the nineteenth century. This I think would be standing against the tide. It is an impossibility and cannot lead to any useful results. This nation and every nation is dependent on its industry, both to supply some of its own needs and to provide foreign currency by exports. In the nineteenth century it was held that the natural economic environment would automatically provide the incentives and restraints which were necessary to ensure that everything worked out for the best, at any rate in the long run. Many people then considered that it was wrong and ill-advised to interfere with this process of natural selection. But, my Lords, let us be quite clear that even in those days artificial restraints and incentives, quite apart from the industrial climate, did exist. They have now become hallowed by tradition and we often forget that they are very much the same in a small way as exists in industry to-day.
To-day such a degree of freedom is no longer practicable; we cannot accept the misery caused by unassisted redundancy or large-scale unemployment. It is at least questionable whether the inefficient company does not survive too long. It is even more doubtful whether, with the increased power of advertisement and high import taxes, the consumer in fact gets what he really wants. I am afraid that, whether we like it or not, the increasing complexity of the modern

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economy makes more central control an inevitable trend. We can see its necessity for many purposes; for example, to encourage industry to move into depressed areas, or to try to control monopolies and to prevent the ruination of our cities and countryside by unrestricted building. I am giving only a very few examples, but we all know these restraints, which in the past were perhaps not necessary, are essential to-day in a more complicated economic situation. However, unless or until computer techniques have been developed to a point far beyond what now seems practical, most of the decisions must—and perhaps always should—bemade by industry itself and they will, of course, be made in terms of the incentives and restraints which their environment provides.
For these reasons, I would ask the Government to look at this environment from a very broad viewpoint and consider whether, by altering some of the incentives and restraints, it may be possible to avoid further palliative measures which are designed solely to curb actions which are not in the national interest. One example of that, of course, is the Monopolies Commission; but I am not suggesting for a moment that we should do without it. It was designed to put a curb on industry and to halt certain abuses which, by the very fact of setting it up, we admit are going on and will continue to occur.
The first and probably the most intractable difficulty is that the company's legal obligations are almost solely to their shareholders. On these grounds, in theory at any rate, they are justified in operating on the highest profit margin which the market can bear and in paying the highest possible dividend to shareholders. I agree with the views put forward by the noble Marquess, Lord Salisbury, in a recent debate. He said that a company must now be thought of as a partnership between the shareholders, management and other employees. Only by moving in this direction can employers hope to get a good working relationship with labour and a modernisation of outlook from trade unions.
There are many things which can be done to help in that direction, and I do not believe that any one of them alone will produce the result. Once we
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have established that this is the direction in which we want to move, it will be a slow process, and several different methods will have to be used to attain this end. One obvious one, which has been mentioned in the papers recently, is the granting of staff status to manual workers; and this I would very strongly commend to those who are thinking about this problem. I also think that on these grounds, if for no other, some effort ought to be made to discourage companies paying excessively high dividends once the risk taken on capital has received its due reward. I do not believe that we can ask the worker, the employee, to show restraint in his wages if he sees that all the profit is going for the payment of excessively high dividends. I know, of course, that it is a question of what the shares are worth on the market, and that unless you are a founder of the company, or have owned the shares a long time, your profit is not likely to be excessive. But I think that this is wrong in principle, and I do not believe it will ever be possible to make the man in the street feel that this is wholly fair. After all, what I have suggested was merely to discourage the payment of excessively high dividends, and this can be avoided without difficulty by capitalisation.
The level of advertising for many goods is far above that required to inform consumers about the types of goods available, and very seldom is it of a really informative nature. In fact, it has been said that although you cannot fool all the people all the time by substantial expenditure on advertisement, you can usually fool them long enough to replace indefinitely one bad product by another bad product. This state of affairs gives dubious orientation to some economic growth. Moreover, money spent on advertisement is wholly unproductive. I would suggest that, in spite of the difficulties, a graded tax on advertising should be very seriously considered.
Two recently introduced measures, one for redundancy compensation and the other the capitation tax, are interesting, because they are clearly capable of altering the environment under which companies work. The first by itself would tend to discourage companies from reducing their staff, whilst the second can have precisely the opposite effect. There are

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many other methods of affecting the industrial climate—for example, tax concessions on the purchase of new equipment. Major spending departments can do a great deal in the direction of improving efficiency and the quality of goods by means of mandatory provisions in their contracts. This has already been done in the case of developments contracts, where the insistence on programming by such systems as PERT has had important effects. I do not think that the Government should shrink from taking any such measures as would be likely to effect improvement—for instance, in the machine tool industry where the viability of a large number of small firms is highly questionable. I am sure that these and many other possibilities have occurred to the Government Departments primarily concerned, but I very much question whether much attempt has been made to look at such problems as a whole from a broad enough viewpoint.
I turn to matters more within the province of the Companies Act. There are many cases where the ability to form a limited company is being used solely as a means of reducing income tax or as a method of defrauding the public without incurring personal liability. The number of small companies being formed has greatly increased in the last few years and many of them do not survive. I should have thought this an unhealthy sign and that up to a certain size of enterprise there is no reason why the directors should not remain financially responsible, by insisting that the company be unlimited or guaranteed by the directors. In any case, the £100 which is now required seems an entirely inadequate sum on which to limit the liability. This was fixed many years ago and has not been altered.
As I said earlier, a consumer is often unable, without legislative assistance, to enforce his wishes or stop practices which are against his interest. One such practice, which was mentioned in your Lordships' House recently, concerns guarantees. Many of these take away the buyer's rights under the Sale of Goods Act, which include not only replacement of defective parts, but the labour charges and consequential damages. It is very seldom that the guarantee covers a period which is greater than the courts would consider reasonable under the Act. What
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this guarantee usually gives is nothing at all, except possibly a certain amount of convenience in so far as one does not usually have to sue for one's rights. I hope, incidentally, that one would not have to in other cases, but it does appear more likely.
I suggest that legislation to remedy this state of affairs would not only help the consumer, but provide a positive incentive for some manufacturers to improve the quality and reliability of their goods. I feel that to-day the consumer is not able to make his views and wishes as easily known as he did in the past. There are several things that could be done to improve his position. I believe that this increasingly will effect an improvement in industry, because although the consumer in England, if he cannot get what he wants, may just have to "lump it", and is prepared to do so, when it comes to exporting these goods people abroad have no such illusions, and if the goods are not suitable they will not accept them.
What I would say, in general terms, is that anything we can do to strengthen the consumer's voice is well worth doing. I would mention, for instance, schemes for informative labelling and for further consumer education. In both cases, I declare a slight interest. In conclusion, I should emphasise that, though I am in favour of free enterprise, I do not believe it is practicable, either politically or morally, to return to a state where free enterprise alone can achieve the results needed in this modem day and age. Let us make no mistake: if freedom of enterprise is our aim, it will be able to continue only if we are prepared to alter the control and environment affecting the entrepreneur.
5.46 p.m.
LORD CAMPBELL OF ESKAN: My Lords, the noble Viscount, Lord Hanworth, has raised a question of importance and of far-reaching implications. I agree with a great deal of what he said, but I want to approach the question from a rather different point of view. I suppose that I should declare an interest, in that I am chairman of a public company. I want to take as my starting point the fact that the Jenkins Committee was set pitifully limited objectives. The Cohen Committee in 1943 was

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asked to review Company Law and the "safeguards afforded for investors and for the public interest". The terms of reference of the Jenkins Committee excluded the public interest. The result is that the Report and recommendations of the Jenkins Committee deal exclusively with the relationship between directors and shareholders and with the protection of investors and creditors.
Shareholders are, of course, an essential component in a corporation; but they are only one among other factors involved; they are only one of the parties that need protection. As the noble Viscount, Lord Hanworth, implies, there are plenty of people other than shareholders with a stake in companies: the customer and the consumer; management and workers, who sell their skills and labour; and the nation, who, by law, have put their trust in the corporations by providing the device of limited liability—which, incidentally, at the time of its origin over one hundred years ago was described as "a rogues' charter". The Jenkins Committee has considered none of these.
The noble Viscount, Lord Hanworth, has spoken about providing an environment in which companies would be encouraged to work not only in the interests of their shareholders but also in the interests of their employees, consumers and the nation as a whole. But I do not see how any environmental ploys will or can achieve the noble Viscount's objectives so long as the only members of a corporate company are the shareholders and so long as directors are, in law, accountable only to the shareholders.
However much the Government may decide the social and economic objectives and priorities of this country; however much they can influence the situation by their powers; however much they may forge new Socialist economic weapons, the fact remains that the economic performance of the nation still largely depends in practice upon the actions and decisions and competence of thousands of individual company directors and executives and businessmen.
It is nowadays fashionable to say that management must manage. That is true enough. And it is fashionable to say that responsibility lies firmly with management. But the problem is: to
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whom are managers responsible and for what are they managing? The law says that the interests of shareholders are paramount. Conscience and common sense tell the managers that they have responsibility to their employees—and surely to their customers and to their country as well. The trade unions can justifiably take the view that if the job of management is to maximise profits for shareholders, the job of the unions is to maximise wages and conditions for their members. The Government tell management to try to hold an incomes line, to keep down prices and to export. Faced with this confusion of objectives and loyalties, torn between law and common sense and conscience, how on earth can we expect managers to move confidently and vigorously forward in the battle for the British economy?
The implication of the Question of the noble Viscount, Lord Hanworth, is that Company Law must be reformed in the context of economic and social policy. These two are too often kept apart, whereas they are indivisible. Surely, my Lords, what is needed is a completely new look at the corporation, not simply by lawyers and City experts. The resources of the social sciences, of management and of trade unions must be brought to bear on the future of the corporation. The new thinking that is going on in other countries should be studied and compared.
I do not believe that the Jenkins Committee is a starter. I would urge upon the Government that the least they should do is to set up a new inquiry, including in the terms of reference, first, the reintroduction of the public interest, as in Lord Cohen's Committee, and, secondly, the examination of the desirability, possibility and means of making employees, as well as shareholders, members of the corporation, with rights and duties. It really is extraordinary that the worker's place simply does not exist in company law at the moment. And in a fully employed society, unless we establish the worker's place, how can we expect a sense of participation and co-operation? Without these, investors will not get profits, customers will not get service, and the country will not get the efficiency, productivity and economic growth that are so desperately needed. I am not suggesting that inquiries or laws can change

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the nature of shareholders, managers or workers, but simply that new company legislation should be backed by new inquiry instead of being grafted on to dead stock. What I myself should really like to see is enabling legislation which allowed and encouraged progressive companies to experiment, with the law on their side, in new forms of shared objectives in corporate enterprises.
Finally, my Lords, I am not decrying the role of the corporation in our British economy and society, or criticising the activities of my fellow businessmen. I am simply saying that, unless our responsibilities and objectives can be freshly defined, and the laws changed to take account of present-day social and economic realities, we shall not be able to deliver the goods (in any sense) that the nation needs of us.
5.53 p.m.
LORD ERROLL OF HALE: My Lords, I am sure that everyone in the House would agree that we have listened to two most interesting speeches, and we have good reason to be grateful to the noble Viscount, Lord Hanworth, for introducing this, on his own admission, very wide subject and dealing with it so lucidly. Indeed, it is a pleasure also to listen to the noble Lord, Lord Campbell of Eskan, with his broad experience of operating successful companies to add to his wise speech to us this afternoon. However much the State may try to arrange things, we in this country, in the end, are always dependent upon the social impulses of the men who are at the top in affairs, whether they be affairs of State or affairs of industry and commerce. I think it is particularly interesting to see how already the directors of many of our leading companies are saying that they are fully aware of their social responsibilities, not only to their own companies, but to the nation as a whole.
In your Lordships' House in October, 1960, there was a most interesting debate upon the responsibilities of management—and here, although I may use the word "management", I should like to draw a distinction between the managers who manage and the directors who direct, because there is an important distinction in this matter. Several noble Lords then expressed views with which I am
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sure the noble Viscount, Lord Hanworth, would agree to-day. There was, for example, the noble Lord, Lord Sinclair of Cleeve, who said that, on the whole, management to-day regards human relations more as a responsibility than it used to do. He went on to say:
"Most firms are careful to see that the importance of the human factor is effectively recognised by all grades of management."
In the same debate the noble Lord, Lord Citrine, paid his tribute to the recognition of public accountability by industry.
A great deal has happened since 1960, and, indeed, a good deal of research work is now going on in this rather difficult field—difficult because it cannot be precisely quantified. Last year, P.E.P., under Mr. John Pinder, started a three-year project, the title of which was "The Role of the Company Boards" including directors' "social responsibility" in taking decisions. Earlier this year the Industrial, Educational and Research Foundation, under the chairmanship of Mr. J. A. E. Reiss, undertook a long cool look at industry under such headings as "Responsibility of Private Industry", "Uses of Power", "Business and Morality", "The Future of the Board" and "Government Plans and Private Industry". I thought that your Lordships would be interested to see that a great deal of work is going on among various bodies in this particular field. I hope that if the Government choose to follow the advice of the noble Lord, Lord Campbell of Eskan, and set up an inquiry, they will at least take into account the amount of work that is being done in this important field.
I should like to refer to the work which the Institute of Directors does (and here I declare an interest, in that I am a member of the Council of the Institute), because I know that it takes seriously this issue of a director's duties. The noble Viscount, Lord Chandos, when President of the Institute, said in one of his speeches:
"I do not think that even for a moment should we allow ourselves to forget that we have the greatest responsibility for the people whom we employ and for their continuing happiness."
Earlier in the same speech Lord Chandos said that the first duty of a board of

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directors was to look towards the continuity of employment of everyone on the company's books. He said:
"That is not money grabbing, nor a fatuous statement. It is something which I profoundly believe."
And he speaks with all the experience, not only of a former Cabinet Minister, but also of one of our industrial leaders.
Perhaps I might also make the point that the director has no greater, but no lesser, duty to the State than that of any other citizen. I believe that he can best render this duty by making his company prosperous. If a company is not prosperous, it is not much use to the employees or to the consumers, whether the company has been supplying good goods or shoddy goods, whether the advertising expenditure has been too great, in Lord Hanworth's view, or not great enough. He must accept that neither he nor his company can exist at maximum profitability in a vacuum. No enterprise is insulated against the general state of the nation's economic health. The director may well, therefore, see it as his duty—a self-enlightened duty perhaps—to fall in with Government policy on, for example, certain matters which may be unpallatable to his company—say, on the redistribution of industry, or the setting up of a second factory in another part of the country a long way away from its main enterprise. But, of course, the director must weigh carefully the pros and cons, and the advantages to the country as against the disadvantages to his company; and he must make the correct decision in the interests of the company, while taking into account the interests of the State. In any event, as the director is responsible for his company, it must be he who in the final resort makes the decision calculated to ensure the success of the company.
I mentioned a moment ago that a director can decide to fall in with the wishes of the Government. It is important to notice to what a great extent now the leaders of industry and commerce provide members of committees of inquiry, and very often, chairmen of important inquiries and commissions, as well as making available for temporary normal Government service some very excellent businessmen and technologists,
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particularly for the Ministry of Technology and for the Department of Economic Affairs. I should like to mention one or two names. The noble Lord, Lord Fleck, Sir Harry Pilkington, Sir Paul Chambers, Mr. Reay Geddes, Sir Donald Stokes, Mr. Scamp, Sir Frank Kearton and Lord McFadzean, are but a few of the names who have been associated in recent years with important Commissions and Inquiries. They have fulfilled some of their social reponsibilities, sometimes giving more of their time, knowledge and experience to the State than to their own businesses
I accept fully that in this country of ours there is always need for improving practices which were innocent when they began but which turn into abuses, and it is for the State at the right time to intervene and check these abuses. The noble Viscount, Lord Hanworth, referred to the Monopolies Commission. I would not go so far as he did and suggest a graded tax on advertising. I should like to see fewer taxes, not more. I am disinclined to agree with him that dividends are excessive to-day. Indeed it is very hard to find the money to pay the dividend, with the new taxation arrangements. But this is not an occasion to take a Party line. This is an occasion to welcome a most interesting debate, and to say that I am sure that the vast majority of those who are responsible for British industry to-day are fully alive to their social responsibilities, and particularly to those of the community.
VISCOUNT HANWORTH: My Lords, may I make myself clear? I was referring to excessive dividends on the nominal capital, not to the yield.
6.2 p.m.
LORD SHEPHERD: My Lords, I would join with the noble Lords, Lord Campbell of Eskan and Lord Errol of Hale, in an expression of thanks to the noble Viscount for initiating what is a short, but very interesting, debate. My only regret is that at this time of night it will not receive the same publicity as no doubt the previous debate will receive in the Press to-morrow.
The noble Lord, Lord Campbell of Eskan, put his finger right on the problem. It is how, in a democracy, particularly in time of peace, we can harness

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the energies, the enthusiasms, of the nation as a whole in developing the economic strength upon which all our social well-being depends. In time of war we all accept regulations. You are almost considered a traitor if you try to find some way round a regulation during war time. Yet in peace, although a nation may be facing a moment of equal gravity, the country naturally resents any form of regulation. It will accept it, but in its heart it really resents it. I think this is probably one of the difficulties which has arisen within certain sections of the trade unions in regard to prices and incomes—there is this natural resentment to control.
I think the noble Viscount was right when he said that we must now accept that we shall have to live, and continue to live, under what one might call a controlled economy. There will have to he a basis of restraint. I hope that in due course the restraint will be relieved, and that we shall be able to put more emphasis upon incentives. During their period of office since 1964 the Government have imposed certain restraints. These are all for the short-term issue of balance of payments. However, at the same time they have laid before Parliament, either in White Papers or in legislation, fairly sweeping measures in the incentive field, most of which will show results only in the long term. I will come back to that in a moment.
I believe that the environment about which the noble Viscount was talking will not be produced by legislation. It is true that legislation may remove certain of the major problems in particular spheres, so far as the workers are concerned: redundancy payment; relief from unemployment that arises naturally by the decline of an industry, and the legislation needed to protect the worker because of the increased use of machines. But in essence, the environment can come only from an acceptance by all persons within the community of certain needs and certain actions. This, of course, depends to a great extent on the Government continually putting before Parliament and the country, whether by speech or by other means of communication, what are the broad policies, what are the ends, and how those ends might be achieved. I agree with the noble Lord, Lord Erroll of
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Hale, that it is not only a responsibility of Government, but a responsibility of the Institute of Directors and national repretatives of directors of companies. It is the responsibility of the Trades Union Congress as the overall co-ordinating body of the great trade union movement of this country. I should have thought that this view was growing apace.
I agree with the noble Lord, Lord Erroll of Hale, that many managers, many directors, are playing an important part in discussions with Government. It is true that this Government have undertaken a greater dialogue with both sides of industry than perhaps any Government in peace time in this country. We are making great use of the "Little Neddies" and the organisations set up to help particular industries. We have regional development organisations composed not only of directors or trade union leaders but of men and women from a fairly broad section of life. This is all to the good. I believe this is the way that we shall obtain the environment to which the noble Viscount referred. Your Lordships will have before this House the Docks and Harbours Bill, the Industrial Development Bill and, shortly after the Summer Recess, the Industrial Reorganisation Bill. All these measures are in the broad-term strategy of the Government, and I think they will he generally welcomed by industry.
The noble Viscount mentioned excessive profits. I suppose that whether profits are regarded as excessive depends upon who receives them. My experience is that few shareholders regard dividends as excessive, although some workers may take a different view. But this matter will be dealt with, as the noble Viscount will be aware; and no doubt the noble Lord, Lord Erroll of Hale, will be very much involved. We shall have in this Parliament a Bill dealing with prices and incomes. Excessive profits may well disappear, because higher profits arise, I suggest, only if prices are not reduced when they could be reduced by higher productivity and higher efficiency of the company. Those prices can be referred to the Prices and Incomes Board, and there is no doubt at all that the possibility of such a matter being referred to the Board—the mere possibility of it—is

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sufficient for the company to think otherwise. There are clear cases where companies have changed their minds very rapidly at the mere suggestion that their price increases should be sent to the Board.
As the noble Lord, Lord Erroll of Hale, is no doubt aware, the question of dividends will be submitted to the Prices and Incomes Board. The noble Lord is a fair man, and I do not think he will disagree that if we are to have a Board to examine the prices and incomes of persons, it is only right and proper that all forms of incomes should in some way be included in this examination. I am quite sure that when this Bill comes we shall have the support of the noble Lord.
In regard to obligation to shareholders, the Companies Bill which was introduced in the last Parliament provided for further disclosure of information to the shareholders. I think this is a very good thing. I should not like to say that this Bill will appear in this Session: it may well do. But I will say to the noble Viscount and also to my noble friend Lord Campbell of Eskan, that if it does not appear in this Session they may be a little happier because of this delay, because in fact it may be somewhat broader and may meet some of the criticisms which I know were expressed among the more radically-minded Members of Parliament that the previous Bill was perhaps too limited. It was so limited, in fact, merely so that it could be fitted into the time-table of the last Government. I give that degree of comfort to my noble friend Lord Campbell of Eskan. I will certainly pass on his suggestion of a further inquiry, although personally I do not think at this stage it would be right. The Jenkins Report was exhaustive; it took a good deal of time to produce, and if we were to set out on another long road of inquiry into Company Law I think it would be difficult to proceed, even on the limited basis of the February Bill. However, we will wait and see.
In regard to advertising I would not agree with the noble Viscount, Lord Hanworth, that advertising is not productive. I have had some experience in business. It is quite clear that if you are to sell your goods you must make the public aware of them, and advertising is
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the only means I know by which you can do that. Therefore in that sense advertising is productive. It is perfectly true that in certain fields which spring to most people's minds (I will not mention them) advertising is probably excessive and could well be reduced.
This question was considered by the Committee that was set up by the Labour Party under the chairmanship of the noble Lord, Lord Reith, and while that Committee recognised that there may be cases of excessive advertising, they could not see how we could legislate for it—for instance, in regard to the method it takes, or some other form of limitation—because there are other ways of promoting goods which would involve expenditure to the company, and therefore a higher price of the article, than mere newspaper, television or hoarding advertising. We know that there are many promotional gimmicks, such as putting toothbrushes into packets of soap, which most people regard as being a complete waste of time and money; but one has to take it. It might well be that if we put a limit on newspaper advertising we should be supplied with more of these unnecessary and wasteful gimmicks. But we shall certainly watch advertising. As the noble Lord knows, the tobacco industry has accepted a voluntary restriction on its advertising, and I think this is something on which the Government may initiate a discussion. But it is more for the realm of the "Little Neddies" to decide whether, within a particular industry, the amount of money being spent on advertising is, in fact, necessary.
The noble Viscount, Lord Hanworth, also raised the question of small companies and thought that companies with a capital of £100 should not have a limited liability. This question has been carefully considered, and the Government took the view, as was shown in the February Bill, that it would be better not to set a limit and thereby prevent small companies from having that limited liability, but to do at least two things, the first being to remove the old exemption by which small private companies need not publish their accounts. I think that if small companies were required by law, as the bigger corporations are; to disclose their accounts once a year there should be sufficient information for companies and banks wishing to make cash

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advances to them. In fact the Jenkins Report rejected the suggestion made by the noble Viscount but, we did accept one of the proposals contained in the Report; namely, that the registration fees of these companies should be raised.
I have already referred to the suggestion made by my noble friend Lord Campbell of Eskan that there should be a new inquiry. I will see that his remarks are passed on to my right honourable friend the President of the Board of Trade. It is true that the Jenkins terms of reference were fairly limited. I do not know whether the noble Lord, Lord Erroll of Hale, should have risen in defence, because I am not sure whether he was at the Board of Trade, when the Jenkins Committee was set up. As I say, it is true that the Committee's terms of reference were limited, but I personally do not believe that at this stage it would be wise to proceed with a new inquiry, at least until the proposed legislation has been before Parliament and is on the Statute Book.
The noble Lord, Lord Erroll of Hale, made one of his gracious speeches. I do not really disagree with anything he said. I think that may be a good omen for the time when we have a number of Board of Trade Bills, on which no doubt he will be leading for the Opposition. I hope that the same spirit of sense and responsibility will continue and that we shall be able to get those Bills through rapidly. In closing, may I thank the noble Viscount for asking this Question?

RACE RELATIONS AND THE "GREATER BRITAIN MOVEMENT"
6.17 p.m.
LORD RUSSELL OF LIVERPOOL LORD RUSSELL OF LIVERPOOL rose to ask Her Majesty's Government whether they are aware of the policy of the Greater Britain Movement regarding "the large coloured and influential Jewish communities" which is set out in Section 3 of the Movement's Official Programme published by the Albion Press, price sixpence, and whether, having regard to the fact that the contents of the said section would appear to contravene Section 6(1)(a) of the Race Relations Act 1965, criminal proceedings could be brought under the said Act against the person or persons responsible
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for the publication and distribution of the said Official Programme, notwithstanding the fact that in order to obtain a copy an intending purchaser must first become a member of The Viking Book Club by signing an enrolment form and paying a fee of sixpence. The noble Lord said: My Lords, I promise not to detain your Lordships for more than a few moments, but I think it is important that I should let you have the reasons for putting down this Question. The Greater Britain Movement I think is best described as the Nazi Party of this country, and the passage I referred to in my Question is contained in their Official Programme. I propose to read part of it out to you. It is under the heading "Nation and Race". I do not suppose that many of your Lordships ever read Adolf Hitler's Book Mein Kampf, but Chapter 11 of that book has exactly the same title, and there is a great similarity between that chapter and Section 3 of this Official Programme.
It starts off with the old nonsense about the Aryan race, saying that:
"Only those of British or kindred Aryan blood should be members of the nation."
It then goes on to say:
"Citizenship of the State. and hence participation in the life of the nation, should be denied to all those of alien race, including the large coloured and influential Jewish communities, who should be eventually repatriated to their countries of origin or to other countries suitable for settlement by them. Further immigration of such people into Britain should be permanently banned.
"With respect to the Jews; our movement, before as well as after such time as it may represent the Government of Britain, will be dedicated to the most determined exposure and eradication of their power in our land. We hold it to be the Jewish influence, in politics and commerce, in morals and culture, that is perhaps more than any other single factor responsible for the organised filth and corruption that has infected the body of our society. The removal of the Jews from Britain must be a cardinal aim of the new order, and must be directed not to Palestine—which the Jews have plundered from its rightful Arab inhabitants—but to another of the world's open spaces where Jewish money and Jewish labour will support the building of an entirely new Jewish state."
There is only one more paragraph I propose to read:
"For the protection of British blood, racial laws will be enacted forbidding marriage between Britons and non-Aryans. Medical measures will be taken to prevent procreation on the part of all those who have hereditary defects, either racial, mental, or physical."

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Section 6(1) of the Race Relations Act, 1965, to which I also refer in my Question, says this:
"A person shall be guilty of an offence under this section if, with intent to stir up hatred against any section of the public in Great Britain distinguished by colour, race, or ethnic or national origins—
(a) he publishes or distributes written matter which is threatening, abusive or insulting".
I should have thought your Lordships would agree that what I have just read out is certainly all three. There is another section, Section 6(2), which says this:
"'publish' and 'distribute" mean publish or distribute to the public at large or to any section of the public not consisting exclusively of members of an association of which the person publishing or distributing is a member."
The Greater Britain Movement did not miss that section. I propose to mention something about it.
There are a number of places where this charming little pamphlet can be obtained, but the chief one is the Viking Press, in Norwood High Street. Anyone can go there and get a copy, provided that he signs a form; and on the left hand side of the form appear these words:
"The Viking Book Club has been formed for the study of literature dealing with the Jewish question and other racial problems which it is not permissible to sell to the general public under the terms of the Race Relations Act 1965. Membership entitles one to obtain such Literature, and beyond the payment of an enrolment fee of 6d. carries with it no obligations whatsoever."
One then signs a form, in accordance with the notice:
"Please complete the form below and sign it, and cut out and with your enrolment fee of 6d. give it to the Viking Book Club."
A friend of mine got this copy by going to the Viking Press. He was served by no less a person than John Tyndall, whose name may be known to your Lordships. My friend signed the form, not in his own name, because Tyndall said "It doesn't matter what name you use"—and he did not even pay the 6d. That is why I out the Question down, and if, as I apprehend, there is a deficiency in this, Act, I hope that some steps will be taken to repair it.
6.23 p.m.
LORD BROCKWAY: My Lords, I should like to express appreciation to the noble Lord, Lord Russell of Liver-
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pool, for raising this matter this evening. The noble Lord is becoming almost a character in this House for raising matters of this kind. Recently we had the Swabey case; now he has raised this case, and I notice from the Order Paper that he proposes to raise a case in which there is apparently some doubt whether a sentence of death for murder was correct. He is almost becoming the Ombudsman of the House of Lords.
I rise to support what the noble Lord, Lord Russell of Liverpool, has said, because I think Members of this House know that over a period of years I have been intensely concerned about this issue. I have introduced Bills in another place for a number of years which have dealt with the danger of the incitement of racial hatred. I recognise at once that there is a difficulty here, because most of us believe in liberty of speech, liberty of writing, and one has to balance the desirability of that liberty with speech or with writing which may bring grave social consequences.
The conclusion to which I came, when I faced that problem, was that, just as an individual who libels or slanders another individual can be brought into court, so an individual who libels a whole race, the consequences of which may be much more serious in social events, should also be liable to prosecution. The phrase which remains in my mind from the passage which the noble Lord, Lord Russell of Liverpool, has read is this:
"We hold it to be the Jewish influence, in politics and commerce, in morals and culture, that is perhaps more than any other single factor responsible for the organised filth and corruption that has infected the body of our society."
I can imagine no phrase more likely to cause racial antagonism than that phrase. It certainly comes within the provision of the Race Relations Act.
The difficulty is that, superficially at least, one can obtain this pamphlet only by joining the club. I was interested to hear, as I listened to the speech from the Front Bench in the previous debate, how in war time if anyone tried by a "wangle" to escape regulations he was regarded as an enemy of our society. This is quite obviously a "wangle" to escape the effect of the provisions of the Race Relations Act. Indeed, it is acknowledged in the terms of membership

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of this Viking Book Club. They actually state that the purpose of the club is to publish material which would be illegal, under the Race Relations Act, if it were issued other than through the means of a club.
I think it very likely that the Government may say that they condemn this—indeed, I know they would say that they would condemn this as strongly as we do—but that under terms of the present Act it is not possible to proceed with a prosecution. If that is the case, if there is a gap in the Act, I would urge that it be filled as early as possible. On an earlier occasion I have asked whether it is the intention of the Government to introduce an amending Bill to the Race Relations Act. The necessity is recognised, but I gather that it is unlikely to be possible during the present Session. It is for this reason that I have given notice that on August 3 in this House I propose myself to introduce an amending Bill to the Race Relations Act, and I have made arrangements with friends in another place that the Bill shall be similarly introduced there. We shall certainly include in that Bill a clause which will fill this gap, so that these fictitious clubs, like the Viking Book Club, shall not have the opportunity to distribute this racial propaganda which may have such serious effects upon the whole community. If the answer of the Government is that this Act in its present form does not deal with this matter, my plea is that at least the Government will give facilities for the Bill which will seek to amend it to that purpose.
6.29 p.m.
THE LORD BISHOP OF SOUTHWARK: My Lords, there is little need for me to say that those of us who sit on this Bench, and I am sure all Churches, are concerned in this matter, and we are very grateful to the noble Lord, Lord Russell of Liverpool, for raising it and much hope that the Government will be able to take effective action. I am particularly concerned because the headquarters of the Viking Book Club is in my diocese, or at any rate on the borders of it, and therefore it is a cause of concern to me and to the Church in the Southwark diocese.
I do not want to overrate them. I think that the influence these people have
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is extremely small. They are known for the political perverts they are; and the sad sort of political slime for which they are responsible has little effect on people. Nevertheless, there are some who are affected and, even though it be perhaps only half-a-dozen, I am sure it is in the interest of all of us that their activities should be stopped. So, while I appreciate all the difficulties and do not want to exaggerate them in any way, I hope the Government will be able to take effective steps to stop this nuisance.
6.31 p.m.
THE EARL OF IDDESLEIGH: My Lords, I think it is thirty years ago when I was in this House and a debate on foreign affairs was going forward that the first Marquess of Reading raised the question of the beginnings of Hitler's persecution of the Jews. I had the honour on that occasion to be the first Peer to express my respectful and sympathetic concurrence with what Lord Reading had to say. I am glad to recall that incident to-day. There are few things that I have done in my life which have given me greater satisfaction. In those days, Hitler's attack upon the Jews was of a comparatively mild nature, and a number of people, quite surprisingly, blamed me for what I had done and thought it was quite unnecessary to take serious notice of the quite mild anti-Semitism that was going forward at that time.
I do not see that there should be any great difficulty in bringing a prosecution against this alleged club. Your Lordships will remember that, quite recently, prosecutions were brought against a theatre club which was joined by an official under a false name. I think there was no objection to that prosecution, and I trust that the Attorney General will give this matter serious thought.
6.33 p.m.
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): My Lords, the noble Lord, Lord Russell of Liverpool, has performed a valuable public service in obtaining copies of the Programme of the Greater Britain Movement and bringing it to the notice of Her Majesty's Government and your Lordships' House. The right reverend Prelate,

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the Bishop of Southwark, quite rightly said that these mindless morons are an insignificant minority. But I was glad that the noble Earl, Lord Iddesleigh, referred 1:0 what be said on an occasion many years ago; they cannot be safely ignored because at the time of which the noble Earl was speaking many people said the same things about Hitler. I have read the whole of this Programme, and Hitler's words and programme are the Alpha and Omega of these Norwood Fascists. Their programme in fact is Mein Kampf unadulterated—it is all there, everything except the gas chambers and the Belsens; and to ignore such infamies would make nonsense, not only of the Race Relations Act but of our deep-seated beliefs in free and equal citizenship for all the inhabitants of these islands.
As my noble friend Lord Brockway has pointed out, the Race Relations Act was designed to deal with minority groups preaching racial intolerance and with anti-Semitic and anti-colour propaganda. The then existing law was admittedly inadequate, and in the new Act we made it an offence to incite to hatred on grounds of colour, race, or ethnic or national origins. The problem, which was a difficult one, was to frame a provision which penalised racial scurrility, inflammatory speeches and publications, without curtailing legitimate comment or controversy. We were determined that legitimate public debate should not be inhibited, and the offence under the new Act was closely defined to ensure that it should bite only on the race-mongers. It was also designed to act carefully and selectively against the leaders and organisers, and that it should not be capable of being used against the ordinary man in the street engaged in ordinary conversation or discussion of the issues and events of the day.
The noble Lord, Lord Russell of Liverpool, has referred to two parts of Section 6 of the Race Relations Act, and I would point out that they have three arms. First, the matter or words complained of must be threatening, abusive or insulting; second, the matter must be likely to stir up hatred against a section of the pubic on grounds of colour, race or ethnic or national origins; third, there must he not only a likelihood, but
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also the intention, of stirring up hatred against a section of the public. Only a court can decide these matters; but it appears to me, as the noble Lord, Lord Russell of Liverpool, said, that this Programme issued by the Greater Britain Movement offends violently against all three provisions, and it is obviously intended to do so.
Under the Act it is an offence to publish or distribute such written matter by any method. This is not confined to something done in a public place; it covers also the letterbox campaign. As Lord Russell of Liverpool pointed out, however, there is in Section 6(2), a definition of "publish" and of "distribute" which expressly excludes the publication or distribution of written matter amongst members of an association of which the person publishing or distributing is a member. It is this exclusion which the Viking Book Club have sought to use, in the belief that they can thereby conduct their filthy and dangerous trade with impunity.
As my noble friend Lord Brockway said, this intention is clear because the order form expressly states:
"The Club has been formed for the study of literature dealing with the Jewish question and other racial problems which it is not permissible to sell to the general public under the terms of the Race Relations Act 1965."
Many people would regard this as a full acknowledgement of a deliberate flouting of the spirit of the 1965 Act. I want to point out that this does not mean that the Act is ineffective. There is, indeed, clear evidence that it has had considerable effect, that the amount of offensive literature has been drastically reduced and that the Fascist leaders are doing all they can to avoid distribution to the general public.
I think that the noble Lord by his account has made this clear. But I say now that it certainly would not be safe for the leaders of the Greater Britain Movement to assume that, even if the distribution of pernicious publications is confined to members of the Viking Book Club, this necessarily means that there is not an infringement of the Act.
The particular section of the publication to which the noble Lord has drawn attention epitomises the racial intolerance associated with the Greater Britain

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Movement. Lord Russell of Liverpool did not read it all. There are such choice phrases as these which he did not read out:
"Urban slums made yet uglier by the arrival of imported sub-humanity bringing disease and filth, rape and drug traffic."
There are many more such phrases in this so-called Programme. But however detestable or pernicious these views may be, there is no evidence that they have been disseminated to members of the public at large. This is the important point as the Act now stands.
This publication, I am informed, is not displayed in the window of the Viking Bookshop and the police have no grounds for believing that it is available to persons who are not members of the movement or of the Viking Book Club. I have, however, taken careful note of what Lord Russell of Liverpool said of the manner in which his copy was obtained and what was said to his friend when it was obtained. I will see that those points are considered in the proper quarter. But copies are not posted to or pushed through the letter-boxes of unwilling recipients, or handed to people in the street. They are available only to those who want to read this sort of stuff, and are willing to take the trouble to go or send to the Viking Bookshop and become a member of the Club.
I am informed that active membership of the movement (the Programme clearly defines members and supporters) does not exceed thirty members who pay the required subscription and undertake active work—thirty intellectual illiterates with an inferiority complex so deep that, in order to be able to live with themselves, they have to assume a superiority based on the colour of their skins and an accident of birth. There are also passive supporters, who pay less and make no undertaking, but counting these together with the members of the Viking Book Club, the total number of participants does not exceed some three hundred in all.
As I have said, the publication of written matter strictly among members
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of an association is not an offence under the Act. This provision was thought to be necessary if the affairs of clubs, businesses and even political Parties were not to be liable to unjustifiable interference. But if this provision leads to blatant evasion we shall have to look at it again, although I am bound to add that a satisfactory Amendment will be difficult to frame. My noble friend Lord Brockway mentioned that he hopes to bring in a Bill, and he told me that he would include a clause or clauses which would close this gap. I shall be very pleased to read those clauses when he has drafted them. Meanwhile, as I have indicated, the Act has been effective in confining literature of this sort to clubs such as the Viking Book Club, and checking its distribution to unwilling recipients.
The Government are aware of the policy of the Greater Britain Movement and of the Viking Book Club, and its literature is being closely examined. I can assure your Lordships also that the police are well aware of the club's activities, and if the club takes any action which might he a breach of the law the case will be referred to my right honourable friend the Attorney General with a view to seeking his consent to the institution of proceedings. The Act has been in operation for only a few months, but if experience clearly indicates that its provisions do not suffice to deal effectively with the mischief at which it was aimed, I can assure your Lordships that Her Majesty's Government will be ready to consider the introduction of amending legislation. In the meantime, we must and will work the present Act to its full extent.

BRITISH WATERWAYS BILL
Reported without amendment.

BRITISH WATERWAYS BILL
The Queen's Consent signified, and Bill reported with amendments.
House adjourned a quarter before seven o'clock.