Lords Sitting of 16 June 1966

Preamble
The House met at three of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Wakefield
The Earl of Donoughmore—Took the Oath.

NAVAL COURTS-MARTIAL
3.7 p.m.
LORD RUSSELL OF LIVERPOOL: 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 they will, without delay, take the appropriate legislative and/or administrative action to ensure that in future no officer in the Royal Navy can be tried by court-martial unless there has been a preliminary investigation of the charge or charges preferred against him; such preliminary investigation to consist of a summary of evidence, taken on oath in the presence and hearing of the accused, with all the witnesses present whom he shall have the opportunity of cross-examining, and may himself call witnesses in his defence and give evidence on oath or make a statement not on oath.]
THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR THE ROYAL NAVY (LORD WINTERBOTTOM): My Lords, it is not desired, nor is it necessary, to make mandatory a formal preliminary investigation before the trial of officers by naval court-martial. An investigation may always be held at the discretion of a commanding officer if, after hearing allegations against an officer, he is in doubt whether there is a case to be tried.
I do not think it is unanimously agreed that committal proceedings or formal preliminary investigations are either useful in the administration of justice or a safeguard for the accused. I have heard them described as archaic and time-wasting,
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and constituting a risk in prejudicing the accused's case. But, as I have said, when a commanding officer decides they can serve a useful purpose, they can be held as preliminaries to naval officers' courts-martial.
I should perhaps explain that under naval court-martial procedure the accused officer receives in good time before his trial not only copies of the charge sheet and the list of prosecution witnesses and summaries of their evidence but also of the circumstantial letter. This circumstantial letter in naval procedure takes the place of the prosecutor's opening speech. I think it fair therefore to claim, my Lords, that the accused in a naval trial is in a very much better position for preparing his defence than at any other trial, whether Service or civilian.
LORD RUSSELL OF LIVERPOOL: My Lords, I must thank the noble Lord for his Answer which, frankly speaking, dismays me. In view of that, it obviously would be quite a waste of time to ask him any further questions.
VISCOUNT DILHORNE: My Lords, is it not the case that in Army and in Air Force courts-martial it is not always necessary to have a summary of evidence; that there can be an abstract of evidence, and that this proposal would apparently involve a change in both Army and Air Force law if the law of all three services is going to be the same?
LORD WINTERBOTTOM: My Lords, I am grateful to the noble and learned Viscount for bringing this point to the notice of the House.

SELECTIVE EMPLOYMENT TAX AND SCIENTISTS
3.12 p.m.
THE EARL OF BESSBOROUGH: 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 they consider it fair that the selective employment tax is to be charged in respect of scientists employed in independent laboratories, engaged in working for manufacturing industry, yet refunded in respect of those working in universities.]
THE MINISTER WITHOUT PORTFOLIO (LORD CHAMPION): My Lords, the noble Earl will by now have seen the Selective Employment Payments Bill, which was published yesterday. Clause 1(2) contains a provision that will bring into entitlement for the selective employment premium those establishments that are certified by the Minister of Technology to be engaged in scientific research relevant to manufacturing activities. Independent laboratories working for manufacturing industry are included within this provision.
THE EARL OF BESSBOROUGH: My Lords, while expressing gratitude to the noble Lord for giving that very satisfactory reply, and while, none the less, agreeing with what The Times said in their leading article to-day about the Bill produced yesterday being unselective to the point of chaos, may I ask the noble Lord whether not only research establishments but these independent laboratories can be certified by the Minister of Technology? May I also ask the noble Lord whether he does not think that the recent staggering "brain drain" of 800 scientists and engineers in a fortnight may not be partly due to the sense of insecurity engendered by the announcement of this tax? Would not the noble Lord agree that independent research establishments and consultants are an integral part of manufacturing industry?
LORD CHAMPION: My Lords, I do not necessarily always agree with any leading articles in The Times, and I should not in this case. So far as the second part of the noble Earl's supplementary question is concerned, the difficulty here is that it will be for the Ministry of Technology to certify what are the establishments which are to receive the premium. As the noble Earl knows very well, establishments of this kind do not conform to any set pattern, and every case will have to be judged on its merits. The inclusion of this clause in the Bill is to ensure that organisations of this kind receive equitable treatment. So far as the brain-drain is concerned, I scarcely see that this arises out of the Question which the noble Earl put upon the Order Paper.
LORD ST. OSWALD: My Lords, would the noble Lord not be his usual graceful
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self and concede that the concession which he has just announced is at least partly the result of the Government's having seen my noble friend's Question on the Order Paper?
LORD CHAMPION: My Lords, the Government is always amenable to sweet reason, from wherever it might come.
LORD IRONSIDE: My Lords, could the noble Lord say whether sponsored research organisations would be eligible to receive premiums?
LORD CHAMPION: My Lords, I did not quite get the point of the noble Lord's question, but when I read it afterwards and consider it I will write to the noble Lord and give him a reply.
LORD IRONSIDE: My Lords, I would thank the noble Lord very much.
LORD HAWKE: My Lords, arising out of the noble Lord's remark about sweet reasonableness and equity, would Her Majesty's Government see that part-time workers are not included in this selective tax?
LORD CHAMPION: I would suggest, my Lords, that that is a slightly different question.

EUROPEAN LAUNCHER DEVELOPMENT ORGANISATION
3.13 p.m.
LORD ST. OSWALD: 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, before the announcement by Her Majesty's Government on 4th June of our withdrawal from the European Launcher Development Organisation, they had asked our partners for proposals to make a change in the distribution of costs; or whether, before the meeting on 9th June any such proposals had been put forward by any of our partners.]
THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR COMMONWEALTH RELATIONS AND FOR THE COLONIES (LORD BESWICK): My Lords, no specific proposals were put forward either way. I must correct the suggestion made by the noble Lord,

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that the June 4 announcement notified withdrawal of the United Kingdom from ELDO. As my right honourable friend the Foreign Secretary made clear in another place on June 13, Her Majesty's Government had not notified withdrawal.
LORD ST. OSWALD: My Lords, is the noble Lord aware that, although his noble friend the Foreign Secretary made one thing clear on the occasion to which he has referred, he has made the very opposite clear on other occasions? There was on June 4, as he noticed, an announcement by the Foreign Office that,
"The Government has concluded, after a careful and detailed consideration of all the factors involved that the latest proposals for modifying the initial programme still do not constitute a sufficient basis for continuing United Kingdom participation in the activities of the organisation"—
that is to say, ELDO—
"and it has so informed its partners".
I should like to ask the noble Lord whether he does not think that this is in direct contradiction to the reference he has made. I would also ask him, without reading out the item, whether he noticed on the front page of The Times on June 6, under the heading "Minister defends decision", the words attributed to his right honourable friend, which were also in direct contradiction to the statement, to which he has referred, in the House of Commons?
LORD BESWICK: My Lords, I had read the article in The Times. I had also read the paragraphs in the Daily Telegraph, from which the noble Lord was earlier reading. I do not believe there is any question of any contradiction. If there was ambiguity in the statement which the Foreign Secretary made, it arose from the fact that the original agreement to which it referred—an agreement concluded by the Members opposite—was sloppily worded, and I think a good deal of the confusion which has since arisen has done so because of the ambiguity of that original agreement.
LORD BYERS: My Lords, may I ask the noble Lord, when he refers to the fact that the Government had not notified withdrawal, whether or not this means that we are going to continue to co-operate with ELDO?
LORD BESWICK: My Lords, what it means is that they had not notified withdrawal. It was not legally possible to withdraw from the agreement before 1969, but there had been an expectation that there would be a continued programme. What the aide-mémoire referred to was our inability to continue with that further programme, unless we were satisfied as to the economic advantages and the technical viability of the scheme.
LORD ST. OSWALD: My Lords, may I ask the noble Lord whether he thinks he can really get away with an offensive remark about sloppily worded agreements by a previous Administration, as a method of covering up completely contradictory statements by his own right honourable friend? I say that because he has not pointed out to the House in which way the two statements—the statement to which he himself referred, and the statements to which I referred today—can possibly be harmonised.
LORD BESWICK: My Lords, in that case I would suggest to the noble Lord that he reads to-morrow the Answer which I have given to the noble Lord on the Liberal Benches.
BARONESS HORSBRUGH: My Lords, can the noble Lord make clear to us the difference between "withdrawal" and "not continuing"?
LORD BESWICK: Yes, certainly, my Lords. Withdrawal in this case, as applied by the noble Lords opposite, or by the newspapers to which they refer, refers to the agreement into which we had entered and which could not legally have been terminated before a date in 1969. The decision not to participate was not to participate in the further development of this project.
LORD ST. OSWALD: My Lords, so I am right in thinking that the announcement made by the Foreign Secretary at London Airport, and in the Foreign Office communiqué, was intended to be taken as an announcement of retirement from the Organisation in 1969, which was, of course, the earliest point at which it would be permitted under Article 23 of the Convention? Am I to take that as being the case?
LORD BESWICK: My Lords, I should not like to rush into any statement that the noble Lord is right in thinking anything.
LORD ST. OSWALD: The noble Lord has already done so.
LORD BESWICK: My Lords, I really suggest that it would be much better if we gave constructive thought to the economic advantages of the scheme and to its technical usefulness, instead of trying to score Party political points.
LORD SNOW: My Lords—
LORD ST. OSWALD: My Lords, I really must ask a question in reply to that direct challenge—
SEVERAL NOBLE LORDS: Order, order!
LORD SNOW: I am sorry to have intervened, my Lords, but I was going to ask a question. May I ask my noble friend whether he is aware that almost all technological opinion is deeply distressed about the entire project, and that it is extremely hard on technological grounds to find any justification whatsoever for it?
LORD BESWICK: My Lords, I think that is true, and had the noble Lords opposite spent half as much time, and half as much energy, in devising proper checks and safeguards when they first entered into the project as they have since done in inventing these allegations of lack of faith on the part of the present Government, we might very well have had a much more sensible project.
LORD ST. OSWALD: I am sorry, my Lords, but I have to ask one more supplementary question as a result of the direct challenge which the noble Lord issued tome just now. Does he consider that the good name of this country for fair dealing among our own European partners is a Party political point, or does he consider that these matters are above Party politics?
LORD BESWICK: My Lords, it is because I believe that these matters are above Party politics, because I believe that it is wrong to rush, as noble Lords have done on this matter and on certain other matters, into challenging the good faith of the present Government, that I think they ought to reconsider their position very closely indeed.

HOUSE OF LORDS OFFICES
3.20 p.m.
Order of the Day read for the consideration of the First Report from the Committee.
The Committee's Report was as follows:
1.—APPOINTMENT OF SUB-COMMITTEES

(a) The Administration Committee:

E. Listowel (Chairman)

M. Salisbury

E. St. Aldwyn

V. Simonds

L. Amulree

L. Shepherd

L. Strang

B. Swanborough

with the Clerk of the Parliaments.
With power to co-opt further Lords.

(b) Library:

E. Attlee

V. Simonds (Chairman)

V. Soulbury

L. Amulree

L. Burden

L. Carrington

L. Chorley

L. Reid

B. Wootton of Abinger

The Lord Great Chamberlain
with the Clerk of the Parliaments.
With power to co-opt further Lords

(c) Refreshment Department:

E. St. Aldwyn

V. Goschen

L. Amulree

L. Sainsbury

L. Shepherd

L. Strang

B. Swanborough

with the Clerk of the Parliaments.
With power to co-opt further Lords and to appoint its own Chairman.

(d) House of Lords' Estimates:

E. Listowel (Chairman)

E. St. Aldwyn

L. Amulree

L. Shepherd

2. LIBRARY
A report from the Sub-Committee on the Library upon certain matters referred to it was laid before the Committee; also the Report for the year 1965.
3. REFRESHMENT DEPARTMENT
The Committee considered a Report from the Sub-Committee on the Refreshment Department and were informed that owing to rising costs the Sub-Committee have decided to increase prices throughout the Department.
4. PARLIAMENT OFFICE
The Clerk of the Parliaments informed the Committee of the appointment of Mr. D. Dewar as a Senior Clerk in the Parliament Office from April 1, 1966.
The Committee authorised the appointment of an additional Personal Assistant on the staff of the Department of the Clerk of the Parliaments.
5. HANSARD REPORTING STAFF
The Committee authorised revised scales of salary for the Hansard Editorial staff with effect from January 1, 1966.
The Committee reviewed the Agreement with Haynes Secretarial Services for the supply of typists for the reporting of debates and approved an increase in their charges with effect from January 1, 1966.
6. DOORKEEPERS
The Committee authorised the appointment of an additional Doorkeeper for duties at Judicial Sittings.
7. DEPARTMENT OF THE LORD GREAT CHAMBERLAIN AND SERJEANT-AT-ARMS
The Committee authorised the payment of the salary of an additional Personal Assistant in the Office of the Lord Great Chamberlain for duties in connection with the State Opening of Parliament in April, 1966.
8. LIBRARY AND RECORD OFFICE
The Committee sanctioned an increase in the payments made to certain Office Assistants and Doorkeepers for cleaning and arranging of books and documents in the Library and the Victoria Tower during the Christmas and Summer Recesses with effect from the Christmas Recess 1965–66.
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD MERTHYR): My Lords, on behalf of the Lord Chairman, who is unavoidably absent, I beg to move that this Report be now considered.
Moved accordingly, and, on Question, Motion agreed to.
LORD MERTHYR: My Lords, I beg to move that this Report be agreed to.
I do not think there are any particular points upon which I am required to elaborate, but if there are any questions I will do my best to answer them. I beg to move.
Moved, That the Report be agreed to.—(Lord Merthyr.)

SEXUAL OFFENCES BILL [H.L.]
3.23 p.m.
Order of the Day for the Third Reading read.
THE EARL OF ARRAN: My Lords, I beg to move that this Bill be now read a third time. Your Lordships will be aware that there are three Amendments to be dealt with this afternoon. I hope the House will agree to follow what I understand is the customary procedure when there are Amendments on Third Reading; that is to say, to take formally the Motion which I am now moving, and then, after the Amendments have been dealt with, to debate the complete Bill, as it is finally amended, on the Motion, "That the Bill do now pass". Accordingly, I beg to move formally that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—(The Earl of Arran.)
3.28 p.m.
On Question, Whether the Bill shall be now read 3a?
Their Lordships divided: Contents, 83; Not-Contents, 39.

CONTENTS

Aberdare, L.

Canterbury, L. Abp.

Ironside, L.

Aberdeen and Temair, M.

Clwyd, L.

Kinnoull, E.

Addison, V.

Colville of Culross, V.

Longford, E. (L. Privy Seal.)

Adrian, L.

Cranbrook, E.

Merthyr, L.

Ailwyn, L.

Cromartie, E.

Milford, L.

Airedale, L.

Elliot of Harwood, Bs.

Mitchison, L.

Allerton, L.

Emmet of Amberley, Bs.

Monson, L.

Amherst, E.

Falkland, V.

Mottistone, L.

Amulree, L.

Faringdon, L.

Mowbray and Stourton, L.

Archibald, L.

Furness, V.

Norwich, L. Bp.

Arran, E. [Teller.]

Gardiner, L. (L. Chancellor.)

Ogmore, L.

Asquith of Yarnbury, Bs.

Grantchester, L.

Reay, L.

Attlee, E.

Granville-West, L.

Rowley, L.

Audley, Bs.

Greenway, L.

Royle, L.

Baldwin of Bewdley, E.

Gridley, L.

Runciman of Doxford, V.

Boothby, L.

Hall, V.

Sackville, L.

Boston, L.

Hampton, L.

St. Davids, V.

Bowles, L.

Harlech, L.

St. Just, L. [Teller.]

Brockway, L.

Harvey of Tasburgh, L.

Samuel, V.

Burton of Coventry, Bs.

Henderson, L.

Sandford, L.

Byers, L.

Henley, L.

Sandys, L.

Segal, L.

Stonham, L.

Thurlow, L.

Shepherd, L.

Stow Hill, L.

Twining, L.

Sinha, L.

Strabolgi, L.

Wade, L.

Snow, L.

Strang, L.

Wakefield, L. Bp.

Soper, L.

Strange of Knokin, Bs.

Wells-Pestell, L.

Southwark, L. Bp.

Swanborough, Bs.

Wootton of Abinger, Bs.

Stair, E.

Taylor, L.

NOT-CONTENTS

Albemarle, E.

Howard of Glossop, L.

Milverton, L.

Ampthill, L.

Iddesleigh, E.

Monsell, V.

Auckland, L.

Ilford, L.

Morton of Henryton, L.

Balerno, L.

Kemsley, V.

Oakshott, L.

BIyton, L.

Kilmuir, E.

Rathcavan, L.

Clifford of Chudleigh, L.

Lambert, V.

Rowallan, L.

Daventry, V.

Leatherland, L.

St. Helens, L.

Dilhorne, V.

Lindgren, L.

Saltoun, L.

Dudley, E.

Long, V.

Shannon, E.

Ferrier, L.

MacAndrew, L. [Teller.]

Sherwood, L.

Fortescue, E.

Mancroft, L.

Soulbury, V.

Grenfell, L.

Merrivale, L.

Strathclyde, L.

Horsbrugh, Bs.

Middleton, L. [Teller.]

Stuart of Findhorn, V.

On Question, Amendment agreed to.

Resolved in the affirmative, and Bill read 3a accordingly.
Clause 1:
Amendment of law relating to homosexual acts in private
1.—(1) Notwithstanding any statutory or common law provision, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21 years.
(2) An act which would otherwise be treated for the purposes of this Act as being done in private shall not be so treated if done—
(a) in the presence of any person other than the parties to the act; or
THE EARL OF ARRAN THE EARL OF ARRAN moved, in subsection (2), to leave out paragraph (a) and to insert instead:
"(a) when more than two persons take part or are present; or".
The noble Earl said: My Lords, the purpose of this Amendment is to attempt to meet the point made by the noble and learned Viscount, Lord Dilhorne, in regard to what constitutes privacy. Your Lordships will note that Clause 1(2)(a) as it now stands excludes from the terms of the Bill an act
"if done …in the presence of another person other than the parties to the act".
But the noble and learned Viscount pointed out that this wording may not achieve the purpose intended, because it may not cover a case where there are more than two parties to the act of gross indecency although there is another person present who is not a party to the act. The present Amendment, which has been drafted by Parliamentary Counsel,
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will, we hope, remove any doubts on this point by providing that an act is not treated as being in private if more than two persons take part or are present. I beg to move.
Amendment moved—
Page 1, line 11, leave out paragraph (a) and insert the said new paragraph.—(The Earl of Arran.)
VISCOUNT DILHORNE: My Lords, I think this Amendment is an improvement to this Bill—if that is the right word to use about this Bill. The best improvement to this Bill would be to cut its throat; but if its throat is not to be cut—and we shall make further efforts to do so—this is a better definition of "privacy" than that which appears in the Bill in its present form. I am grateful to the noble Earl and also to the noble Lord, Lord Stonham, for meeting the point I raised at an earlier stage of the Bill.
THE EARL OF ARRAN THE EARL OF ARRAN moved, after Clause 8, to insert the following new clause:
Past Offences
".—(1) Except as provided by the following provisions of this section, sections 1 to 3 of this Act shall have effect in relation to acts done before the passing of this Act as they apply in relation to acts after its passing.
(2) Except as provided by the next following subsection, this Act shall not have effect in relation to any act which is, or apart from this Act would be, an offence where the defendant to an indictment for that offence has been committed for trial before the passing

149
of this Act or, as the case may be, a court-martial for the trial of that offence has been ordered or convened before the passing of this Act.
(3) The foregoing provisions of this section shall not operate to increase the punishment for any offence committed before the passing of this Act."
The noble Earl said: My Lords, may I speak to this Amendment and also to the other Amendment standing in my name simultaneously, although of course they will have to be dealt with separately. These Amendments are an attempt to meet a point raised by the noble Lord, Lord Faringdon, in Committee. He felt uncomfortable about Clause 9(5) which states, in effect, that, despite the provisions of the proposed Act, an offence which was committed before the Act came into force would still be an offence. This seemed to him, and to me, to be wrong. The Amendments before your Lordships' House seek to correct this position. They say, in effect, that, except in cases where a person has already been committed for trial before the commencement of the Act, no person shall be convicted after the passing of the Act for conduct which has in itself ceased to be an offence. They also say that the increased penalties under the Act—and let us not forget that there are increased penalties proposed for offences against minors; and this is very important—should not apply to offences committed before the passing of the Act. Put simply and briefly, we are saying that as from the passing of the Act we are starting again.
There is, however, one point which may not entirely satisfy the noble Lord, Lord Faringdon. If criminal proceedings have already been instituted before the passing of the Act, then the terms of the Act will not apply. In other words, such proceedings will continue. The noble Lord, Lord Faringdon, may not be entirely satisfied, but I deeply hope that he will not object. Our courts are not Hollywood courts, not—to those familiar with television—Perry Mason courts, where there is a last-minute intervention and a cry of" Reprieve!" The law is the law, and once invoked it must pursue its inexorable course. I understand this, and I hope that the noble Lord, Lord Faringdon, will do so, too. After all, he will have secured nine-tenths of what he rightly desires.
But there is a third point arising from the noble Lord's Amendment which, so
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far as I know, has not been raised. If, by any chance, this Bill should be enacted, what will happen to those who are already in prison and, under the terms of the Act, are not criminals? Will they be released? I ask Her Majesty's Government for advice on this point. I beg to move.
Amendment moved—
After Clause 8, insert the said new clause—(The Earl of Arran.)
3.42 p.m.
LORD FARINGDON: My Lords, the noble Earl, Lord Arran, besides producing this particular Amendment, has referred to what is behind it, and I am extremely grateful to those who have cooperated to produce an acceptable Amendment. When I say "acceptable" I do not wish to imply that I myself accept it—I do not. It is not satisfactory and it does not meet the whole of my case, although, as the noble Earl said, it does meet nine-tenths of it. It will, however, remain the case that where proceedings have been begun against a man before the passage of this Act we shall still have the extraordinary situation of court proceedings going forward, and of a defendant being judged by a jury or by a judge under a law which is no longer our law for the commission of an act in respect of which, had it been committed at the time when the sentence was passed on the defendant, no proceedings could have been taken because no offence would have been committed. This, quite clearly, is an anomaly, though I see that there are very considerable and heavy difficulties in the way of meeting this particular anomaly.
Having said that, I can only hope that the noble Lord, Lord Stonham, who has shown himself so sympathetic all through our proceedings dealing with this Bill, will be able to give me an assurance that administratively everything possible will be done to prevent this situation from arising. For example, it is already the case, I believe, that chief constables have been asked, before opening proceedings of this kind, to consult the Director of Public Prosecutions, and I suppose that if this were done in the circumstances which I have outlined there would be no prosecutions under a law which was already about to become obsolete. Similarly, I suppose that if a judge or a

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court was passing a verdict on a man after the passage of the Bill for an offence which was no longer an offence, this would weigh very heavily with the court in considering the penalty to be imposed. With these rather unsatisfactory consolations I am bound to be content, but I hope that the noble Lord, Lord Stonham, will be able to give me some kind of assurance such as I have asked for.
3.44 p.m.
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): My Lords, we should very much have liked to find a way of meeting 100 per cent. the case put in Committee by the noble Lord, Lord Faringdon, but it has just not been possible to devise a workable provision to cover cases in which proceedings may already be in progress when the new law comes into force. We are considering a Bill, and the only point at which the courts may take notice of it is when the Bill becomes an Act of Parliament. The cases may be at one of a number of stages ranging from the hearing of committal proceedings to the summing-up by the judge of evidence already taken at a trial; or it might happen even at the time of the retirement of a jury. They may or may not be cases in which the defendant would escape conviction if he had the benefit of the new law.
Our problem was how it would be possible at the particular stage of the proceedings which had been reached to identify a defendant entitled to the benefit of the new law so there ought not to be a conviction. As the proceedings would have been conducted under the present law the defendant would simply have been charged with a particular homosexual offence. The proceedings would not have been concerned with the crucial issue under the new law of whether the offence was with a consenting adult in private. Therefore there would not be, or there would not necessarily be, evidence on which the court could decide these issues in respect of the case before it. A similar problem would arise when a defendant had been committed for trial and the trial had not yet begun. Who would decide, and how? Who would decide whether the defendant was entitled to the benefit of the new law?
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In order, as I say, to frame a workable provision it has been necessary to draw a dividing line between cases already committed for trial when the new law comes into force and those which have not, and to provide that the former should con-tine to be dealt with under the present law. Of course, as my noble friend is aware, there is no reason to foresee that there would be many cases in progress when the Act came into force which would create difficulty. If however a case was in progress in which the defendant could be convicted for conduct which would clearly be lawful under the new law, it would be open to the court to take note of it in considering the penalty to be imposed.
The noble Earl, Lord Arran, in moving the Amendment went beyond its scope and asked me, as indeed did my noble friend Lord Faringdon, what would be the position of all people who, when this Bill becomes law, are in prison for offences which under the Bill would cease to be crimes. This is not just those whose cases were in process when the Bill became law, to which my noble friend has referred, but those convicted and sentenced beforehand, although what I am about to say applies a fortiori to the "pipeline" cases to which my noble friend referred, if there were any. My words have been chosen with care. If this Bill becomes law the Home Secretary would be prepared to look at the cases of those who are serving terms of imprisonment for conduct which had ceased to be an offence, and to consider in each case the possibility of recommending the use of the Royal Prerogative of mercy to remit the remainder of the term. I hope that your Lordships will feel that this Amendment and the assurances I have given fully cover the point which was made.
Clause 9 [Short title, citation, interpretation, saving and extent]:
THE EARL OF ARRAN: My Lords, this Amendment is consequential upon the previous Amendment which we discussed. I beg to move.
Amendment moved—
Page 5, line 18, leave out subsection (5).—(The Earl of Arran.)
THE EARL OF ARRAN: My Lords, I beg to move that this Bill do now pass. I am not going to talk about the Bill itself, I have said all that I have to say on that subject. Instead, with your Lordships' permission, I propose to speak about the future of the Bill if your Lordships are good enough to pass it this afternoon. I say "the future" but in fact there is seemingly none.
A NOBLE LORD: Good!
THE EARL OF ARRAN: I respect the noble Lord's opinion. No one high in the Commons ballot has seen fit to take on this Bill and the Government will not promise time and facilities to debate it in the other place. This means that our Bill will moulder until the end of the Session and will then, for the second time, die. It will be two years before these matters are debated again.
This seems to me absolutely wrong. We have spent in all eleven days of Parliamentary time on this Bill. It has been fought and debated up and down this Chamber. One hundred and thirty-five speeches have been made by serious men and women for and against, and 192,000 words have been spoken. And in the end, at the point of exhaustion, we threshed out a Bill which pleased this House once, by a large majority, and which, if I am not over-audacious, looks like doing so again. It also pleased the other House, though it had to be introduced afresh there—but it was none the less your Lordships' Bill. Had it not been for the General Election, it would almost certainly have been on the Statute Book before the Summer Recess, though probably in amended form.
As it is, where are we? The answer is, nowhere and with no prospect, seemingly, of getting anywhere. It takes the heart out of one. What is the point of all this, if it is to be entirely disregarded? Why are we here? I think that the House will know me well enough by now to know that I am not a political animal. I would speak in exactly the same way to a Tory Government. I am, on the other hand, very much a House of Lords man. I believe in the House of Lords. I like to think that we do a useful job here and that our views and findings are taken seriously. If it is not so, we might as well pack up and go home. This Bill is to me a touchstone
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of the importance or otherwise of your Lordships' House—but let me leave that aside.
I speak to the Government to-day not as a critic, but as a suppliant. I ask for their help and their indulgence. I have the honour—I regard it as a very high honour—to speak on behalf of perhaps one million men, men who cannot, who dare not, speak for themselves, men who are despised, men who are deprived, men who are different from the rest—as some of your Lordships insist, bad and evil men, but men who are not criminals. Shall we not listen to these findings? Shall we not listen to the things these men themselves cannot say? Shall we not give them peace? Can your Lordships think of anything more frightful than for a man, very often a decent man, to feel that he is a potential, if not an active, member of the criminal classes?
We have before us to-day a major measure of social reform. This Government declare themselves, I believe genuinely, to be a reforming Government. Reform is the very essence of their beliefs and their intention. I know that they have a heavy legislative programme. I know that their job, first and foremost, is to carry out their mandate and that other things, however important, must come second. Nevertheless, second things can have their place. This is a long Session. Cannot time be found during the next eighteen months to settle this business? Surely it is not too much to ask. I appeal to the Government, in the name of justice and social progress, to give aid to those who watch, and wait, and hope.
Moved, That the Bill do now pass.—(The Earl of Arran.)
3.55 p.m.
TIIE LORD ARCHBISHOP OF CANTER-BURY: My Lords, as my noble friend Lord Arran has just said, the arguments of this Bill have been heard many times and, like him, I do not intend to repeat any of those arguments. In the debate on the Second Reading of the present Bill a few weeks ago, it was acknowledged on both sides of the discussion that there is a great concern for the upholding of the standards of morality in this country. That is acknowledged, and the issue is: what is the role of the law in the up-

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holding of morality and, in particular, what is the role of the present law? I have argued all along that the present law makes it hard to help those whom society should help to free themselves from wrong influences. But none of those arguments do I want to repeat. Like the noble Earl, I want to say just a word or two about the future.
If this Motion is carried presently, what will the position be? The position will be this. This Bill has been carried in your Lordships' House in two successive Parliaments, and in the last Parliament the Bill was given its second Reading by a large majority. Is it not therefore fair to say that there is no doubt now as to the opinion of Parliament upon the issue raised by this Bill and the reforms which it proposes? It would seem a lamentable pity if difficulties of time and procedure now make it impossible to give legislative effect to what appears clearly to be the judgment of both Houses of Parliament. Therefore, I want to join the noble Earl in begging the Government to facilitate this Bill by accepting it as their own.
The noble and learned Lord the Lord Chancellor has voted for this Bill; the noble Earl the Leader of the House has voted for this Bill; in another place the Home Secretary has spoken very powerfully on behalf of the Bill. Is it too much to hope that the Government, by adopting the Bill, will carry into law a reform which appears to have the strong support of the majority of both Houses of Parliament?
3.58 p.m.
THE EARL OF KILMUIR: My Lords, I have spoken so often on this Bill that it would be a poor compliment to your Lordships if I thought that my views were unknown, and therefore I want to follow my noble friend Lord Arran and the most reverend Primate in not repeating the arguments which we have made in the past, but simply to give a brief explanation of the vote which I wish to get and which I shall ask the House to let me give. I have listened with all the care and attention I can command to the arguments in favour of this Bill, but I go out "by the same door as in I went". I am not only not convinced that this Bill is necessary or desirable; I am convinced that it will be one of the most serious
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blows at our moral standards that has taken place this century.
It is one of the problems of government—and I ask Her Majesty's Government to consider it as a problem of government—that government and life must always consist in a proper admixture of liberty and order. Few who look at the condition of our country to-day would deny that the problem of arriving at the right admixture is one of the most serious in our national life. I know it is easy to make satiric fun of those who believe in the necessity in some fields of order supported by the sanctions of law. I know it is always attractive to every one of us in this House, whatever our political views, to be, apparently, lighting a new candle of liberty. But on important occasions there arises a confusion between a supposed candle of liberty and the will-o'-the-wisp of licence. I would remind your Lordships again, as has been often said before, that that will-o'-the-wisp rises only from the irridescence of decay. Because I believe that it is a will-o'-the-wisp, because I believe that the end of the search is decay, I shall seek to divide your Lordships against this Motion and to vote against the Bill.
4.3 p.m.
LORD SOPER: My Lords, in allowing my name to be set down to take part in this debate, I was well aware that by the time it came for me to speak what I had to say might well have been said by a previous speaker. That, in fact, has happened, and I undertake not to repeat what was the substance and the spirit of what I intended to say, as it was most admirably set forth by the most reverend Primate. What I should like to do is to add, in two short comments, support for what to me is a matter of equally intense moral concern as it most obviously was to the last speaker.
I would not pretend to represent the Nonconformist conscience; but I know a little about it. Your Lordships will be aware that in past days there was a tendency for personal morals to be more rigid and for social morals to be more radical: teetotalism alongside political radicalism. It is, therefore, the more remarkable that within the last decade there has been a great and significant movement of conviction away from the narrower standards that, as I believe, once prevailed in this particular field of personal

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ethics; and from a democratic standpoint I would, if I may, ask the House not to under-value the transformed situation which has been represented in public declarations by most of the Nonconformist bodies, to which I made reference in a previous debate and will not repeat now. It is for this reason that I am the more persuaded that there is democratic authority outside this House and throughout the country for the kind of changes that are envisaged in this Bill.
Secondly, I know among my many friends many whose hearts are now sick because of what they believe is hope deferred. I am concerned, as this House is, for those who, as homosexuals, have had a glass of water before their eyes and before their mouths for some little time now and may well feel that it will be dashed from their lips before they have a chance to quench their thirst. This is no sentimental appeal, for there are many criminals among all categories of this community in which we live. But I feel strongly for those who, having felt that perhaps there was hope for them, will feel the more bitterly if that hope is now snatched away. It is in no rush of œcumenical fervour that I feel so completely in agreement with what the most reverend Primate had to say. I merely support what he has had to say, and hope that the Government will find time to put so many wrong things right and to give so many people hope in the dark places in which they now live.
4.7 p.m.
LORD FERRIER: My Lords, like other speakers, I have no intention of going over the ground again, but following upon the speech of the noble Lord, Lord Soper, in which he mentioned Nonconformist opinion, I think it would be fair for me to remind your Lordships that the Church of Scotland took another view of the matter. I only mention that in passing, because, of course, this Bill does not apply to Scotland.
LORD SOPER: My Lords, the noble Lord will remember that the Church of Scotland is not Nonconformist.
LORD FERRIER: In the face of the noble Lord's superior knowledge, I stand corrected. I have only two small points to make, and they relate to what happened on the Second Reading when, having taken the stand which I have
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always taken about this Bill, and of which your Lordships are aware, a noble Lord suggested that I was quite out of touch with the people. I feel it is only fair that I should say that one cannot have been a schoolboy, a prefect, a private solider and an officer; one cannot have worked half a life in an Eastern seaport, had dealings with the tribesmen of the North West Frontier, and returned to this country to bring up a family, now grown up, without having views which I think it is proper that I should express in a debate of this nature.
The second point I want to make is that I was taken to task for saying that in continually worrying about this particular Bill we are bringing your Lordships' House into contempt. I respect the views of any noble Lord, and for that reason I have taken particular trouble since the Second Reading to inquire of the people I have met on this very matter, and sought further information as to whether what I said was correct or not. I should like to tell your Lordships that I found that those I consulted broke about even. But in the middle was a large body of opinion who agree with me that the matter should certainly have been discussed, but that we have overdone it. That is the stand I take.
After the speech of the noble and learned Earl, Lord Kilmuir, there is nothing more that I can say, except that I propose to go into the Division Lobby with him, because I believe that, law or no law, crime or no crime, the people as a whole despise and detest homosexual behaviour, and this gives no relief.
4.10 p.m.
THE EARL OF DUDLEY: My Lords, I wish to say only a word or two. I have been seriously ill and unable to take part in earlier debates on this Bill; otherwise I should have put my point of view very forcibly. But I have a namesake in this House, a Baron, who supports the Bill, and as I have had several letters from relatives and strangers expressing their disgust at my having supported this Bill, I want to make it quite clear that I am wholly against the Bill. I cannot stand homosexuals. They are the most disgusting people in the world, and they are, unfortunately, on the increase. I loathe them. Prison is much too good a place for them; in

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fact, that is a place where many of them like to go—for obvious reasons.
If noble Lords will only consider for one moment the filthy habits these people have in private, I do not believe that one of them will vote in favour of this Bill; and particularly not the Bench of Bishops and the most reverend Primate, who are supposed to set a good example against sin. I think the blackmailing angle of this subject is very much exaggerated. Blackmail exists in all parts of the world; and, after all, a blackmailer can operate where a married woman and a married man have sinned—not, of course, getting them into prison, but perhaps ruining their lives. That is all I want to say. I am going to follow the noble Earl, Lord Kilmuir, into the Lobby, and I hope that the Bill will be thrown out. I am delighted to hear from the noble Earl, Lord Arran, that it is going to have a short life, and therefore I will not waste any more time on it.
4.11 p.m.
LORD SALTOUN: My Lords, I look upon the provisions in the first clause of the Bill for the protection of youths as so utterly illusory that I had it in my mind to put down an Amendment on the Third Reading cutting out any reference to age, in order to make the Bill, as I thought, more straightforward and honest for the people who read it. But then I remembered that the noble Lord, Lord Annan, had professed himself in favour of the Bill and that it would fall to him to make distinctions between 20½ and 21½. Therefore, I thought it would be rather presumptuous of me to move an Amendment of that nature to the Bill on Third Reading, and so I refrained.
None the less, I could wish that, if there is any good to be done by the Bill, it could be done by the Legislature in some indirect fashion, and not by an ad hoc Bill for the purpose. I refuse to believe that a legislative ability which has produced the Bills of Exchange Act and the Sale of Goods Act is incapable of amending the law in some way to bring to effect any good purpose that may be in this Bill.
On the last occasion, when I happened to say what the noble Lord, Lord Ferrier, has said (I think better than I can say it),
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and when I pointed out how the people whom I look upon as the salt of the earth were astonished that the House of Lords should vote for this measure, the noble Earl, Lord Arran, jumped up and in an impassioned way said that the House of Lords was in favour of reform of the law on homosexuality and not in favour of the act itself. All I can say is that if something is illegal, and we pass an ad hoc Act to make it legal, it is very difficult to say that we are not promoting that activity. We cannot legislate in a vacuum; we always have to take into account the circumstances in which we are legislating, and I still say that it is very difficult for your Lordships, if you agree to the Third Reading of this Bill, to say that you do not promote the activity which you thus make legal.
THE EARL OF ARRAN: My Lords, I must intervene here. Surely it is true to say that, in all the discussions we have had, and in all the speeches, no single noble Lord or noble Lady has ever said that homosexuality is a right or a good thing. It has been universally condemned from start to finish, and by every single Member of this House.
LORD SALTOUN: That is perfectly all right, and it does not mitigate anything that I am going to say. I am merely pointing out, as I pointed out before, that if this House gives the Bill a Third Reading, it will have a great deal of explaining to do.
I now turn to Her Majesty's Government. When I tried to father this Bill on Her Majesty's Government on a previous occasion, the noble Lord, Lord Stonham, immediately jumped up and perfectly accurately pointed out that this is not a Government Bill, but a Private Member's Bill, and that the Government were free from any responsibility concerning it. Shortly after the noble Lord made that statement, I complained in your Lordships' House, not for the first time, of a very long-standing grievance, that is, that your Lordships have no assistance in drafting Bills and Amendments to Bills in which you are interested. Not receiving any reply from the Government, I took a week or ten days to study the matter in all its facets, and eventually I wrote a letter to the Leader on the subject, suggesting ways in which this wrong might be righted. Nothing has

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happened about it since then, except that from time to time I have had a quiet word whispered in my ear to the effect that my letter is "receiving great attention"; but I am fairly sure that it will receive the attention that this suggestion has always received in the past.
None the less, when the question of amending this Bill came up not long ago, the noble Lord, Lord Stonham, promised the noble Earl, Lord Arran, the help of the Government draftsman in drafting the Amendments which your Lordships have passed this afternoon; and I am perfectly certain that the assistance of the Government draftsman was very useful. I do not say, any more than I said before, that the Government are responsible for this Bill, but I do say that they have a great deal of explaining to do.
LORD STONHAM: Would the noble Lord allow me to interrupt? He is speaking of the assistance which the Government gave in connection with the work done by Parliamentary draftsmen on this Bill. There is nothing unusual about that. We have done it with other Bills, including the Abortion Bill; and he may recall that we gave major assistance by Parliamentary draftsmen on the Protection of Birds Bill.
LORD SALTOUN: That is perfectly true, but it is an assistance which is never granted unless the Government have an interest in a Bill; and I say that the Government have a great deal of explaining to do.
LORD STONHAM: My Lords, I have made it perfectly clear at almost every stage of this Bill—and when my turn comes to speak I shall make it very clear again—that the attitude of the Government at every stage of this Bill has been one of neutrality, but we have felt, with this and other Bills, when the wish of the House is known, that it would be wrong to withhold the assistance of Parliamentary draftsmen, which would thereby make the wish of the House effective.
THE EARL OF ARRAN: May I intervene at this stage to confirm what the noble Lord has just said?
SEVERAL NOBLE LORDS: Order!
LORD SALTOUN: I think the noble Lord, Lord Stonham, has made my point for me. It is a matter which requires
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explanation, and no doubt will get it. There are other matters, too, which require explanation.
Then, again, there is the Church. The Church has taken a very decided line on this Bill, and I think that the Church will have a great deal of explaining to do. Some 60 or 70 years ago I was instructed, by men who were an ornament to that Church, to which I belonged in their doctrine, in their service book, in their ritual and in their moral code. I do not know what has happened to the doctrine because that is a matter most people decide for themselves. But the service book seems to me to have been thrown into the gutter, I suppose because it was in very good taste; at any rate it has all altered now.
Again, their ritual would have horrified the men who taught me; and I am sorry to say that the moral code set by the Church now is one that I have ceased altogether to agree with. I feel like a shipwrecked mariner who has taken refuge on an iceberg which has carried him to calmer and warmer waters and then melted and left him floundering in the waves. Fortunately, I have not very far to swim, so it does not matter. But the point is that the Church will have a lot of explaining to do over this Bill.
I have been accused of many things in my life, some perhaps true, some perhaps false. There is one thing experience has taught me, and that is that explanations are tedious, embarrassing and utterly futile. I have been a Member of your Lordships' House a long time, and your Lordships' reputation and welfare are very dear to me. I will wish your Lordships better experience with your explanations than I have had in my own life.
4.23 p.m.
VISCOUNT DILHORNE: My Lords, I am sure it is the desire of this House to proceed fairly shortly to a Division, and I do not propose to speak for very long, but I think it would be ungracious of me not to take this opportunity to congratulate the noble Earl, Lord Arran, on getting so far with such a controversial measure which I am sure is not wanted by the country at large. I think that he personally has gained a great deal of political experience and has shown a great deal of skill in the way he has got the Bill to this stage. Of course, he has had

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tremendous support from the most reverend Primate and the right reverend Prelates. I notice that their attendance has been remarkable. I have never seen such attendance on any other Bill. It is really not quite so great to-day, so that gives me hope that in a Division we may succeed. And no doubt the rival attractions of another Lords and of Ascot accounts for the absence of some of those Peers who were present on earlier occasions.
The best news I have had to-day is the statement of the noble Earl, Lord Arran, that this Bill really has no future. If he knows that and he says that is the case, I wonder why we are wasting time with it at all. I must say I find the position of the Government in this matter extremely anomalous. The noble Earl, Lord Arran, would readily confess that he would not have a chance of getting this Bill through this House were it not for the massive support he has had from Government supporters and the Government Front Bench. Now he tells us that the Government flatly refuse to give any further facilities for debate of this measure or make any promises. I am delighted. I hope they will adhere to that decision, and I think the reasons for it are very good indeed, because if ever there were a Bill which the majority of people of this country do not want I am sure this is it.
Is it not really rather extraordinary if the Leader of the House, the Lord Chancellor and other Front Bench members of the Government here go into the Lobby and vote with their Labour supporters for the Motion "That this Bill do now pass", and then, speaking for the Government, say, "We do not propose to provide any facilities for its being dealt with in another place"? I am glad of that decision, but to be consistent I should have thought that the Front Bench members of the Government and their supporters should not vote in favour of this Bill passing. Or are they going to say that really the Parliament Act should apply in reverse: that if a Bill has been passed by this House in two successive Sesions it should certainly be enacted by the Commons? I must say I think the attitude of the Government on this point is rather curious and I hope they will reflect upon it. I am saying this
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in the hope that the consideration of these arguments may lead to the Leader of the House and the Lord Chancellor thinking it really would be more consistent with the Government's attitude if they refrained from voting "That this Bill do now pass".
LORD SHEPHERD: My Lords, may I interrupt the noble and learned Viscount, as one who, as he knows, has opposed this Bill in Division? The answer is, and I believe it applies right through this House, that all Members, whether they are Ministers or Peers who sit on the Front Bench opposite, here vote as individual Peers, and the Government is surely not committed by any particular expression of any member of this side or noble Lords opposite.
VISCOUNT DILHORNE: I am not suggesting that they are committed—not in the least. I am just pointing out the anomalous position they find themselves in and the inconsistency. I am not suggesting that the noble Lord is being inconsistent; he is not. In opposing this Bill he is being entirely consistent with what I understand is the Government's view: that no further facility should be given. I think it is a valid point for consideration and I hope it will be considered.
I do not intend to go over again the reasons why I am, and have been throughout, strongly opposed to this measure. They have been most excellently and ably put by my noble and learned friend Lord Kilmuir. I would add only this: that there are two arguments which have been repeatedly advanced, both of which I think are unsound. The first is that if this Bill is passed blackmails will become a thing of the past. I do not think it will. I do not believe you will find support for that in Wolfenden, but I think a great many people will have been induced to support this Bill in the hope that that will be the result.
Another argument is that the law should not interfere with anything a man does in private. I think that that, too, is an extremely doubtful proposition. If that be so, then surely we ought to amend our drugs legislation so as to permit of people taking drugs if they so wish with impunity, so long as they do it in private. I must say I think this is an extremely bad Bill, and if we pass it to-day, as I hope we shall not, I only

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hope the Government will not change their mind but will adhere to their decision not to provide time for it and not to give any facilities for it. It is my belief that if the country at large had had a real opportunity of expressing its opinion upon this measure, the overwhelming majority would have been against relaxing the law so as to make sodomy in private lawful.
4.29 p.m.
LORD SOMERS: MyLords, I cannot let this Bill go through its final stage without registering a protest against it, and registering it with every ounce of strength of which I am capable. The reason is this. It is not that I consider that those who indulge in this particular offence are the worst members of our community. I think there Are many worse crimes. Those who beat up their wives or their children, those who cause distress and suffering, are probably a great deal worse citizens. But I think that the passing of this Bill would be another landmark in what I feel is a most distressing trend in our country to-day. That trend is the gradual releasing of penalties against certain offences and certain crimes in order to make things easier for those who commit them. Naturally I am not referring to capital punishment, upon which I personally have divided views; but I think that this endless concern to make things comfortable for the prisoner, who has probably caused the greatest distress and the greatest want and misery to those who are his victims, is all a sign that we are trying to make things comfortable for the man who has committed evil. To my mind, this is a sign of a gradual waning of self-discipline. Self-discipline is something that one has to learn when one is young from those who are older and wiser. One has to learn it in the form of discipline, and then, as one grows older, it turns into self-discipline.
But where has that gone to-day, particularly with the young? We have all this new psychological attitude towards bringing up young children. It is considered entirely wrong to say "No" to a child. One must allow it to do whatever it likes, and one must give it whatever it wants. All those who desire anything must be given it at once. One has only to look at the endless list of strikes to wonder how many of them have been unsuccess-
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ful. Those who have desired a little extra in the way of welfare and so on, purely in their own interests and not in the interest of the country, have been given it. I think this is a distressing trend.
We have had such trends before. But what distresses me even more is the fact that it is supported by the Church. I am, I hope, a faithful member of the Church, and, as such, naturally I will not say anything in criticism of the most reverend Primate. I can only say that what he said to-day gave me the greatest and deepest sorrow. I dare say your Lordships have read a book which has been distributed fairly widely recently called The Cult of Softness. It is by two authors, Sir Arnold Lunn, a Roman Catholic, and Garth Lean, who is an Anglican. They are both at one in one thing, namely, that this swinging away from true Christianity to a sort of fake Christianity in order to make things more popular for the young is, in the end, going to be, as I fear, the downfall of our country. I feel that this Bill is all part and parcel of that trend, and therefore I sincerely hope that your Lordships will not pass it.
4.33 p.m.
LORD BROCKET: My Lords, I wish to say only three things. First of all, it has been stated that the opinion of Parliament is in favour of this Bill. I do not believe that there has ever been more than one-tenth, or thereabouts, of the Members of the House of Lords in favour of this Bill. We know that many Peers do not come, but I believe that the greatest number in favour of this Bill—out of 1,000 Peers, some of whom have "signed off"—is about 90 or 100. That is the fact. So it cannot be said that this is the opinion of Parliament. Secondly, I do not believe that it is the opinion of the Bishops' Bench. I have a letter in my possession from a Bishop, who says that the Bench of Bishops is as equally divided as the country. If that is so, it may be a case of 50/50. The third matter is, that I cannot understand how the Church can be in favour of this Bill and not wish to have the sanction of the law behind the Church.
4.34 p.m.
LORD SNOW: My Lords, I have not taken up your Lordships' time since I

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left the Front Bench, and I shall not do so for more than five minutes now. But I have sat through a large number of hours, so it seems to me, on this somewhat overheated topic, and I should like to explain my own position, for in fact I am in support of the Bill—not with the passion which various of my noble friends feel, and certainly not with the passion some of its opponents feel. I have never believed that men are naturally good, or that all one has to do is to give them freedom in order to obtain a perfect society. I have never believed that, and here I have often been greatly divided from noble friends of mine who take what I regard as a more romantic attitude to man's possibilities.
Therefore, I approach this libertarian legislation which we have had, in a much more empirical fashion—will it, on the whole, do more good than harm, or more harm than good?—and without much in the way of overwhelming principle behind my attitude. On this Bill, I am compelled to say that I think that, although it will not do anything like the good that has been claimed for it by some of its proposers, it will not do like anything the harm that has been claimed by some of its opponents. By and large, I suspect that it is worth having. It will remove some pain and will do relatively little social harm.
There is on all these subjects a tendency grossly to over-dramatise the whole topic. I have been struck throughout our debates with how rapidly the temperature has gone up, and how rapidly overdramatic statements have been made by noble Lords whom I respect, on both sides. To be honest I have often been surprised by the curious unworldliness of some of the discussion. It has seemed to me, occasionally, that some noble Lords speak as though they have never met a homosexual, as though these were something like the white rhinoceros—strange animals, difficult to observe. Yet every noble Lord here must have met many homosexuals, and many must have met some of the most distinguished and, if I may say so, worthy of Englishmen. This must have happened. It would be indiscreet of me to give names across the Floor of this House, but I am quite sure that these confrontations have occurred. This curious unworldliness, as though we are discussing something which
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is, as I say, as strange as the white rhinoceros, has tended to increase the over heatedness of the whole discussion.
I would take a much more temperate and, some may think, cold-blooded attitude. I have lived in many countries: in countries with quite different kinds of sexual legislation; in countries with extremely severe sexual legislation, like the Soviet Union; and in countries with extremely permissive legislation, like Sweden. As I have said before, I am no more a believer than many noble Lords opposite in total permissiveness; but on this particular subject, sexual behaviour and its relation to the law, I must say that in the countries in which I have lived, the correlation has seemed to me extremely slender: that is, human behaviour seems not to be affected greatly, and, on the whole, the moral tone seems not to be much affected. That being so, to the best of one's observation, if we can make life slightly more comfortable for people who have no greater fault than to suffer from something that is an innate part of their constitution, a thing which is certainly not in their control, I believe that we are sensible to pass this Bill.
I therefore suggest that we congratulate the noble Earl, Lord Arran, who has submitted himself to unpleasant ordeals in the pursuit of this particular piece of legislation, for anyone who speaks either for or against sexual emancipation knows that he is going to get into trouble. I had had this in my own family recently. My wife suggested that it might not be an entirely good thing for Krafft-Ebing to be on every bookstall in the country. Immediately she got obscene letters of protest. I am sure we are all in the noble Earl's debt. I would suggest to your Lordships that we pass this Bill without too much heat, and suggest to the noble Lord, Lord Stonham, that he should communicate with the Government to see whether they can find time for it to become law in this Session.
4.40 p.m.
LORD BOOTHBY: My Lords, I know that your Lordships are anxious to divide. I want to make one only brief comment on the speech of my noble and learned friend Lord Kilmuir. I was a little astonished to hear him say that if we pass this Bill it will be the greatest

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blow to morality in this country that has been enacted by Parliament in this century. Opinions are bound to differ, but perhaps the noble Earl will forgive me if I say that, in my judgment, by far the greatest blow against social morality that has ever been delivered, not only in this century but in any other, was the Bill passed in all innocence by the Government of the day, which legalised gambling in every shape and form. The moral deterioriation that has flowed from that in this country—and we are not yet at the end of the story—is absolutely colossal. This country has become a cesspit of gambling in every shape and form, and the damage it is doing in every class of society could be irretrievable.
There was another thing that astonished me in the speech of my noble friend. We were both born and bred in the same city, the great City of Edinburgh, and he did not seem to accept—and this applies also to my noble friend Lord Ferrier—the incomparable superiority of Scottish law over English law, to which the noble and learned Lord, Lord Reid, drew our attention the other day. There is no problem in Scotland about this matter, because we administer the law properly. Proceedings are not taken against homosexuals according to the temper of innumerable chief constables, or whether they suffer from indigestion after breakfast. Proceedings in Scotland are taken by Procurators-Fiscal on the authority of the Lord Advocate, and they are not instituted unless it is considered by him in the public interest to do so. That is why there is no problem in Scotland. If we had that situation in England and Wales, there would be no necessity for this Bill.
I would say to my noble friend Lord Arran: do not be too sad or pessimistic; the stature of this House is not going down. If we pass this Bill, as I think we probably shall, for the second time in two Parliaments, the other place will take notice of it. I think that the Government ought to give serious consideration to the appeals made to them, and there was great force in the argument put forward by the noble and learned Viscount, Lord Dilhorne, on this matter. However, I do not think we should complain of another place. I cannot for the life of me see why Mr. Steel, the
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Member for Roxburgh and Selkirk, should be reproached, as I think he was in some newspapers, because he did not introduce this Bill there. He is a Scottish Member, and it does not apply to Roxburgh and Selkirk. And why should he introduce it? But I say to my noble friend Lord Arran, who has done a great and courageous job, that he should keep his courage up, and that he should not allow himself to utter the few despairing sentences which he uttered just now.
4.44 p.m.
LORD CARRINGTON: My Lords, like the noble Lord, Lord Snow, I have not spoken on either of the two occasions on which the Bill has passed through this House. I hope that he will forgive me if I describe his speech as coming from somebody who has been sitting on a fence, and who has just fallen off on the side of the Bill. I should describe my position as that of somebody who has been sitting on a fence and who has just fallen off on the opposite side to the noble Lord. Although I feel that logic is all on the side of my noble friend Lord Arran and his Bill, I have considerable misgivings about the psychological effects on the country at this particular moment.
SEVERAL NOBLE LORDS: Hear, hear!
LORD CARRINGTON: Therefore, I have neither voted nor have I spoken on this measure, which was probably very cowardly of me, although no doubt it saved a good deal of time. My only reason for breaking my silence to-day is this. Due to my noble friend Lord Arran's determination, against great difficulty and, I imagine, a great deal of abuse, I should like to congratulate him on his determination in succeeding in getting the Bill, on the second occasion, to this stage. The Bill has been passed twice by pretty large majorities in this House. Yet it seems, if we are to believe my noble friend and the most reverend Primate, that the Government are not going to find time for it in the House of Commons. I have risen merely to say one very brief word about that.
To say the least of it, I think that that attitude is very discourteous to this House. Can we contemplate such a situation in reverse? Suppose a Private Member's Bill

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had been passed through another place with a big majority, would it be conceivable that we in this House should not find time for its discussion? Of course we should; we should accept it as a House of Commons Bill. And if we did not do so, can your Lordships imagine the reactions of Members of another place? This seems to me to be a matter of propriety between the two Houses. It calls into question whether or not all your Lordships, whether you are for or against the Bill, have been wasting your time in hours of debate, hours spent on Committee stage in amending the Bill minutely and at great length, and then, after all that time and trouble, it does not even get to the House of Commons.
I would remind those of your Lordships who are against the Bill that there is an issue of principle here. This may well happen at a time when all your Lordships will be unanimous in wishing this Bill to go further than just this House, to go to the House of Commons, and to get on the Statute Book. I have no idea what would happen if this Bill went to another place. For all I know, it might well be defeated; but I think that the House of Commons should be given an opportunity of making their views known. I do not imagine that even those noble Lords in this House who feel most strongly against this Bill would wish it to fail for that reason, for lack of opportunity. After all, all of us are believers in a democratic system of government, and this has become a very widely discussed problem. I should think that all of us wish to see these controversial matters discussed and settled in normal Parliamentary fashion. I, for one, certainly hope that the Government will see that the opportunity is given.
4.48 p.m.
LORD ROWALLAN: My Lords, I am afraid that I have spoken too often on this Bill at various times, but I would remind your Lordships that the Wolfenden Report admitted, in paragraphs 57 and 58, that the passing of this Bill would lead to an increase in homosexuality. Are your Lordships prepared to face up to being guilty of causing that, even obliquely, or do you believe that people who are at present sitting on the fence and who are able to hold their head high in self-respect should be pushed off? It
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is not a very laughable thing: I wonder how any of your Lordships would feel if it happened to one of your own sons, or to any noble Lady's husband. But it is a thing that I personally am not prepared to do—to cause even one foot to stumble and be driven into homosexuality because we have not the decency to keep the country clean.
4.50 p.m.
LORD STONHAM: My Lords, I join with my noble friend Lord Snow in congratulating the noble Earl, Lord Arran, on his achievement in bringing this Bill to this stage. Whatever our views may be, I think we cannot but admire his courage and perseverance in piloting such a difficult, controversial and, to many of us, unpleasant measure once again through your Lordships' House. I would, however, make one point clear at once in respect of what I am going to say, with regard to the contention of the noble and learned Viscount, Lord Dilhorne, that the Government have given massive support to this Bill.
VISCOUNT DILHORNE: Government supporters, not the Government.
LORD STONHAM: My Lords, I listened carefully to what the noble and learned Viscount said, and I know he referred to Government supporters and people who are not Government supporters. But he will find that he also said that the Government have given massive support.
VISCOUNT DILHORNE: If I did say so, I must have expressed myself wrongly. I was contrasting the attitude of the Government, as such, in not providing further facilities, with the attitude of members of the Government on the Back Benches and those who support the noble Lord on the Front Benches. I never sought to suggest that the Government, as such, had given massive support.
LORD STONHAM: I am very glad that I raised the matter, because, obviously, I misunderstood the noble and learned Viscount, and he agrees with me that in no real sense have the Government given massive support to this Bill. However, I believe that we have given valuable support in trying to ensure that the intentions of your Lordships on a number of issues and as expressed in a considerable number of

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Amendments have been given practical effect by the assistance which has been given by Parliamentary draftsmen.
In the discussions on this Bill last year I tried to carry out my task of strict neutrality on behalf of the Government. In this I was so successful, or unsuccessful, that both those who support the Wolfenden recommendations and those who oppose them thought I was biased—in the opposite direction. To-day, if there is any doubt, let me make it perfectly clear that I personally am wholly in sympathy with this Bill, and if there is a vote I will vote for it. I have been asked by noble Lords, and in particular and specifically by the most reverend Primate, to say that the Government will now sponsor this Bill and assure its passage. Thinking as I do, I understand the feelings of those who want to see the law reformed. But I ask them, as the Government must, to consider the other side of the picture which was so ably and, if I may say so, feelingly delineated by the noble and learned Earl, Lord Kilmuir.
There is, I suppose, no issue which more deeply divides those who are concerned with the criminal law than the relationship which ought to exist between the criminal law and the accepted morality of the community. Again, the noble and learned Earl, Lord Kilmuir, described the proper admixture of law and order. It is a divisive issue, not only among lawyers, moralists and philosophers, but also among the less articulate members of society. We find it, and have found it, reflected in strongly held views and attitudes, wherever people stop to consider what conduct people should tolerate among themselves and their neighbours. So it follows that anyone who seeks to alter, in any major way, the delicate balance between conduct which we enforce by criminal sanctions and conduct which we seek to enforce by moral sanctions alone, is likely to be seen as challenging the deep moral convictions of individuals.
The reform in the law which we are now considering epitomises that moral challenge, and reactions to it have little or nothing to do with a majority Government, and little or nothing to do with the people's political and social attitudes. This issue is one which cannot possibly
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be resolved in a way to satisfy all the Members of your Lordships' House or all the members of the community, and in the Government's view it is essentially one which must be decided in a way which requires no one to act against his moral feelings and conscience.
The noble and learned Viscount, Lord Dilhorne, found something inconsistent, perhaps, in someone like myself sitting on the Government Front Bench, who has one opinion, or like my noble friend Lord Shepherd, also sitting on the Government Front Bench, who has another opinion, expressing those opinions by their votes. From the very beginning, I said that the Government would adopt a neutral attitude and insist that everyone should be free to express his vote as he wished. I see nothing inconsistent in that, and I think there is everything right about it.
Whatever views your Lordships may take, one way or another, on the issue on which we shall have to vote, I think you will agree that the Government's attitude has been the right one and the only possible one to adopt. The attitude which we have maintained throughout these discussions, and which we shall continue to maintain, is a neutral attitude to this Bill. Therefore, I cannot grant the plea of the most reverend Primate, that the Government should take over the Bill. I realise that what I have said will be a disappointment to many noble Lords, but the attitude of the Government has been clear throughout.
I come to the point which was put to me by the noble Earl, Lord Arran, by my noble friend Lord Soper and, again, by my noble friend Lord Snow, that we should seek the alternative method of providing Government time so that the Bill can make speedy progress in another place. I am sure that noble Lords will appreciate my difficulty in discussing in your Lordships' House the arrangement of Business in another place. This is not a matter which we can take very far. The noble Leader of the Opposition said that we were being discourteous to your Lordships' House.
LORD CARRINGTON: No.
LORD STONHAM: The noble Lord used the word "discourteous".
LORD CARRINGTON: I said that if no opportunity were given in the Commons for this Bill to go through, then it would be discourteous.
LORD STONHAM: There are many opportunities in the Commons, apart from giving Government time. I suggest to the noble Lord, that he is being a "bit previous" in suggesting that there is going to be discourtesy over a matter on which your Lordships have not yet given a final decision. It is a little early to criticise in this way.
But I do not intend to shelter behind this, because I recognise the validity of the points which have been made. This is a most unusual Private Member's Bill and it has reached an unusual stage, in that it has received decisive majorities on a number of occasions in your Lordships' House, and also a decisive majority for a Second Reading in another place during the last Parliament. I have little doubt that your Lordships will very soon again demonstrate your clear views on this matter, and there is no reason to suppose that opinion in another place has substantially altered.
I think, therefore, despite what has been said by a number of noble Lords, that there is a general feeling in the country that this Bill is going to become law sooner or later, and the only issue is whether it becomes law this Session, next Session or the one after. This, I agree, is an unsatisfactory state of affairs, both for those immediately concerned and for the law in general, and it would be desirable to have a clear-cut decision in both Houses of Parliament as soon as possible. But your Lordships will also appreciate the overwhelming difficulties which face those responsible for organising Business in another place. As a Minister, I know only too well of the Bills which I should like to see enacted quickly and which because of the shortage of Parliamentary time simply cannot proceed as fast as I would wish. I
know, also, that all my colleagues could produce lists of their own.
My Lords, those are the difficulties. I am glad that your Lordships have expressed your views on this matter so forcefully, and I shall report them no less forcefully to my right honourable friend. Your Lordships will be aware of the views the Home Secretary has expressed on liberal reforms of the criminal law, and will appreciate that his personal attitude to this Bill will certainly not be unhelpful. I hope your Lordships will accept that that is as far as I can take the matter at this stage.
5.3 p.m.
THE EARL OF ARRAN: My Lords, I cannot say that I am other than very disappointed at what the noble Lord, Lord Stonham, has said. It does rather look like, "This year, next year, some time, never". Of the Bill itself, again I shall say nothing. The fact is—is it not?—that there are two sides. One side will never persuade the other. One of us is right and the other is wrong. I do not know which it is. We shall just have to find out if and when this reform ever comes to pass.
In all matters of social reform there is a risk. There was a risk in suspending the death penalty for sheep stealing; there was a risk in its repeal. These risks were taken, and the country survived. I do not conscientiously believe that the risks here are as great as have been made out. If I had thought so, I would not have promoted this Bill, and I would certainly not have gone on with it. We have appealed to the Government—with little success, I fear. But to prove that we mean what we say in this House, I appeal to your Lordships, when we go to a Division, to give the Bill a smashing majority.
5.6 p.m.
On Question, Whether the Bill do now pass?
Their Lordships divided: Contents, 78; Not-Contents, 60.

CONTENTS

Addison, V.

Archibald, L.

Boston, L.

Adrian, L.

Arran, E. [Teller]

Bowles, L.

Ailwyn, L.

Asquith of Yarnbury, Bs.

Brockway, L.

Airedale, L.

Attlee, E.

Burton of Coventry, Bs.

Amherst, E.

Audley, Bs.

Canterbury, L. Abp.

Amory, V.

Birdwood, L.

Chorley, L.

Amulree, L.

Boothby, L.

Citrine, L.

Clwyd, L.

Kinross, L.

St. Just, L. [Teller]

Colville of Culross, V.

Lloyd of Hampstead, L.

Samuel, V.

Cranbrook, E.

Longford, E. (L. Privy Seal)

Sandford, L.

Cromartie, E.

Merthyr, L.

Segal, L.

Darwen, L.

Mitchison, L.

Sherfield, L.

Donovan, L.

Monson, L.

Snow, L.

Emmet of Amberley, Bs.

Mountevans, L.

Soper, L.

Falkland, V.

Mowbray & Stourton, L.

Sorensen, L.

Faringdon, L.

Norwich, L. Bp.

Southwark, L. Bp.

Foley, L.

Ogmore, L.

Stonham, L.

Furness, V.

Phillips, Bs.

Stow Hill, L.

Gardiner, L. (L. Chancellor.)

Plummer, Bs.

Strang, L.

Granville-West, L.

Rea, L.

Strange of Knokin, Bs.

Greenway, L.

Reay, L.

Swanborough, Bs.

Gridley, L.

Robertson of Oakridge, L.

Taylor, L.

Harlech, L.

Royle, L.

Twining, L.

Harvey of Tasburgh, L.

Runciman of Doxford, V.

Wakefield, L. Bp.

Henley, L.

Sainsbury, L.

Wells-Pestell, L.

Kinnoull, E.

St. Davids, V.

Wootton of Abinger, Bs.

NOT-CONTENTS

Albemarle, E.

Hall, V.

Monsell, V.

Allerton, L.

Hawke, L.

Morrison, L.

Alport, L.

Henderson, L.

Morton of Henryton, L.

Ampthill, L.

Hilton of Upton, L.

Nugent of Guildford, L.

Auckland, L.

Hodson, L.

Oakshott, L.

Balerno, L.

Horsbrugh, Bs.

Rhodes, L.

Blackford, L.

Howard of Glossop, L.

Rowallan, L.

Blyton, L.

Iddesleigh, E.

St. Helens, L.

Brocket, L.

Ilford, L.

St. Oswald, L.

Burton, L.

Kemsley, V.

Saltoun, L.

Champion, L.

Kilmuir, E. [Teller]

Sandys, L.

Daventry, V.

Lambert, V.

Shepherd, L.

Dilhorne, V. [Teller]

Leatherland, L.

Sherwood, L.

Dudley, E.

Lindgren, L.

Sinha, L.

Ebbisham, L.

Long, V.

Somers, L.

Ferrier, L.

Luke, L.

Soulbury, V.

Fortescue, E.

MacAndrew, L.

Strathclyde, L.

Fraser of Lonsdale, L.

Merrivale, L.

Stuart of Findhorn, V.

Goddard, L.

Middleton, L.

Tweedsmuir, L.

Grenfell, L.

Milverton, L.

Williamson, L.

Resolved in the affirmative: Bill passed accordingly, and sent to the Commons.

TRANSPORT USERS CONSULTATIVE COMMITTEES BILL [H.L.]
5.15 p.m.
Order of the Day for the Second Reading read.
THE EARL OF KINNOULL: My Lords, I beg to move that this Bill be now read a second time. I do not think this Bill has quite the contentious spirit of the Bill we have just passed, but I believe that the principle of justice involved in it is similar. This Bill is a very small but important one, and it sets out to amend the present scope and duties of the Transport Users' Consultative Committees under Section 56 of the 1962 Transport Act. I feel that I should say at the outset that I cannot myself claim the credit for
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this Bill, but, as it deals with a subject in which I am deeply interested, I naturally feel it a great honour to be entrusted to steer it past any political rocks in your Lordships' House and I sincerely hope it will not founder. The House may be interested to know at this stage that the Bill has the support of over 200 local authorities who have, I am told, forwarded resolutions to the Minister on this matter. It also has the support of a great number of individual persons and societies interested in transport.
In introducing the Second Reading debate, I should like, first, to explain the present powers and duties of the Transport Users' Consultative Committees, with particular reference to the effect of this Bill; secondly, to demonstrate to—and, I hope, convince—your Lordships that there is increasing public distrust over the conduct of the hearings before the Committees at present; and, lastly, to ask the House to give its approval to

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this Bill which is solely designed to restore confidence in the hearings and to create the feeling not only that justice is done but that it is seen to be done.
The Transport Users' Consultative Committees were originally set up under the 1947 Transport Act and became, as the name much implies, the watchdog of the public, safeguarding their interests in the services and facilities provided by the British Transport Commission. The Committees were given statutory powers to consider a wide variety of subjects from rail-fare increases to passenger service withdrawals. Six Area Committees and one Central Committee were appointed by the Minister, each member of which was carefully selected so as to offer a wide variety of views on behalf of the users. Any complaints as to rail services were considered first by the Area Committees, which would report their findings to the Central Committee. The Central Committee would then consider the case and, if it felt it was a good one, would make recommendations to the Minister, who then had the duty to decide whether to accept the recommendations or to reject them.
The duties and procedures of these Committees were considerably reduced and altered in scope by the 1962 Transport Act. No longer were they to consider public complaints of rail-fare increases; their duties were watered down, in effect, to listening to grievances of the quality of the services provided by the new Railways Board which superseded the British Transport Commission. One important change of procedure, in fact, did take place under this Act: it was that the Area Committees were now to report direct to the Minister where rail closure proposals were heard and where there were hearings of objections against them.
But the fault, I would suggest, of the 1962 Act was that it narrowed down the functions and scope of these Area Committees to consideration of specific aspects only. They were to consider first the hardship aspects, the hardship that would be suffered by those users of the lines it was proposed to close; and they were to consider secondly whether alternative services should be required in the event of the line being closed, and to make recommendations on these
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alternative services. I may add here that the term "hardship" was not defined, so far as I know, in the Act and there is still confusion as to its definition. The procedure at these hearings before the Committee is always, of course, the prerogative of the chairman. It is not the procedure itself over which the supporters of this Bill are in dispute; it is the power and scope of these Committees and the hearings that lead them to feel that the procedure is so inequitable.
The hearings are conducted in an informal atmosphere. Any user, or body of users such as a local authority, so long as written objections have been lodged within the prescribed time of seven weeks from the first advertisement by the Railways Board, has the right to be heard; and in fact it is the proud boast of the Committees that evidence was recently taken by one of the regular users of the Pitlochry line whose age did not exceed nine years. But before the hearing is held the secretary of the Committee normally sends out to all objectors a copy of the Railways Board's case for closure. This is known as "Heads of Information". The evidence of the Board usually includes the estimated revenue and the estimated cost of running the line, a recent census of the users of the line, and a list of existing alternative services, and possibly a list of proposed alternative services. Any objector who feels strongly that the removal of the railway service would have a detrimental effect on the area in which he is living and on himself personally will, naturally, study the Railways Board's case with the greatest care; and with his special knowledge of the area no doubt will find much of the information highly questionable. He may possibly comfort himself with the thought that at least at the hearing he can cross-examine the representatives of the Railways Board and prove to the Committee that at least some of the evidence is misleading.
Imagine, therefore, my Lords, the surprise and astonishment of objectors who find that accompanying the Railways Board's case there will usually be a note from the secretary of the Committee to say that at the hearing the only admissible evidence is to be narrowed down to the two aspects of hardship and alternative services. The objector will therefore have no chance to

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cross-examine the Railways Board's case, which depends largely on the financial aspect. It is not surprising, my Lords, to find that the reputation of these hearings has sunk so low, because of this aspect, that they are now considered by many people to be purely farcical. I would add that a number of Committee members themselves appear to be unhappy as to the existing procedure. For the objector finds himself attending a hearing, but unable to put over his case in the best possible light; bursting with indignation at the case put by the Railways Board, but bound hand and foot and prevented from making any indication of his dissent.
The question that immediately arises when considering this extraordinary state of affairs is, why on earth are objectors barred from cross-examining the Railways Board's case when it has been considered right in the first instance that they should see the case prior to the hearing? Many people consider the effect of this is seriously to prejudice the whole proposal before it even reaches the Minister. The official reason why financial evidence is introduced at the hearings at all is that it provides a guide for the committees when they consider the alternative services and the cost of those services. It would seem, therefore, that this information should he extremely accurate and as full as possible. But there is the further disturbing fact that the financial case presented by the Railways Boards at this stage is extremely sketchy and has often proved at a later date to be inaccurate. It has been proved that ultimately, when figures are sent to the Minister, they vary from the figures produced at the hearing. I have been given evidence that disgruntled objectors, including local authorities, have come away from hearing after hearing knowing full well that the financial evidence given would not stand the test of cross-examination. Yet the committee accepted it.
My Lords, I hope that I have expressed myself clearly enough to demonstrate how urgent is the case for the reform of these hearings. I submit that it is an important issue of principle, and great harm would be clone were it held over to be incorporated later in a new Transport Act. It is also an issue of principle which members of this Government supported when in Opposition. So I move the
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Second Reading of this Bill with confidence that, on the one hand, the Government and members of the Government surely must give their blessing and support to it, and, on the other hand, that it will relieve them from bringing in similar legislation themselves. I beg to move.
Moved, That the Bill be now read 2a.—(The Earl of Kinnoull.)
5.26 p.m.
LORD ST. OSWALD: My Lords, logically in presenting this Bill my noble friend should be able to expect support from certain noble and formidable Lords sitting opposite. Their speeches when sitting on these Benches, not all that long time ago, were in line with what my noble friend has been putting forward to-day, though frequently delivered in more extreme language than his own gentle and persuasive style. The noble Lord, Lord Stonham, for instance, at one time or another struck doughty blows for the preservation of the Porthcawl line, the Haltwhistle and Alton line, the Taunton/ Barnstable and Taunton/Yeovil lines, the Newquay/Perranporth line, the Sheffield/Chinley line and the Isle of Wight Railway—all on separate occasions.
In a passionate speech on June 19, 1963, the noble Lord thought that the system proposed, and now in being, was "as unsatisfactory and undemocratic as the procedure of the Star Chamber." In the course of various speeches he went even further than my noble friend in wanting a properly constituted public inquiry on each proposal, believing that the transport users consultative committees were not enough. On July 30 of that same year he wished for the County Councils' Association, the Rural District Councils' Association and the National Association of Parish Councils all to be consulted. However, I cannot truly or justifiably encourage my noble friend in the event to expect such logical support from the Benches opposite, because there is nothing very logical or consistent about the policies of present Ministers. They have come to terms with the ci-devant Star Chamber, and I do not think that he will shake them loose from the procedures which they inherited from us.
Nor, I am afraid, has my noble friend shaken me loose from my conviction that these procedures were sensible and just; although in citing 200 complaining letters

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from local authorities written to the Minister he has certainly given the Government something which they must answer; and I shall listen very carefully, as I always do to the Minister who replies, before deciding to what extent I can agree, or disagree, with him that, when applied, these procedures have proved inadequate, unjust or unsatisfactory.
My Lords, it could, of course, be that safeguards applied under a benign Conservative Administration would have worked more kindly and effectively than under Socialist bureaucracy, with its well-known propensity for pushing the citizen around and treating his every complaint as an impertinence. Emphatically what my noble friend has said will require the noble Lord, Lord Champion, to be on his toes, as well as on his feet, to-day to provide a convincing as well as a humane and well-meaning answer to the complaints and anxieties which my noble friend has described.
Whatever substance there may be in what my noble friend describes as increasing public distrust in the present machinery, the noble Lord, Lord Champion, must rebut these sincerely stated strictures with some concrete evidence in contradiction. If he does so, I think that the noble Lord, Lord Champion, will probably neutralise me on this issue. I say this because what my noble friend proposes would seem to me to delay the really necessary rail closures for a needless period, with a consequent delay in the modernisation of Britain and a consequent waste of money. It appals me to think that the present Government should be enabled in any way to delay the modernisation of Britain any more than they are doing at present, or to waste even more money than they are doing now.
In reading the record of the Second Reading of my noble friend's previous Bill, a wry thought occurred to me on a passage of the winding-up speech of the noble Lord, Lord Lindgren, when the noble Lord said:
"Even a Labour Government cannot use £120 million twice."—[OFFICIAL REPORT, Vol. 266, col. 994; 27/5/65.]
Had this been a misprint and had the noble Lord in fact said:
"Even a Labour Government cannot lose £120 million twice"
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there would have been plenty of noble Lords to expostulate at such a claim.
Although, as I have said, I am not yet convinced that what my noble friend proposes is either necessary or wise, it is none the less true that he has done a service to the House in raising the whole question. In the context of the manner in which procedures which he criticises are now working, the Government are called upon by this debate to give some information. I should like myself to know one or two things. It is a little over a year since my noble friend did us this service in 1965 and the noble Lord, Lord Lindgren, on that occasion gave us some helpful information, which is now out of date in the natural course of events, and he was expecting other information, which must now be available.
He spoke, for instance, of a simple survey about to be made to test the effect on travellers of rail passenger closures. The survey, he told us, was to begin two days later—that is to say, on May 29 of last year. It would consist of interviewing passengers using trains on three different services then scheduled for closure and, a month or two after the closures, interviewing the same passengers a second time, to find out what alternative transport they had adopted and how their journeys compared with those they were making by train before the closures took place. The object of this very proper survey was to establish how far the fears expressed by passengers were borne out in practice and how successful were the arrangements made by the Minister for alternative travel. The analysis of the results he did not expect until the beginning of this year. I do not think that that analysis, or any part of it, has been published. If it has, I must have missed it and I would apologise to the noble Lord, Lord Champion, and he can simply refer me to it. If not, I think that he may well wish to pray in aid these findings, supposing they are reassuring, since that particular experiment seems directly pertinent to the anxieties of my noble friend.
The Government spokesman told us, on that earlier occasion, that the Railways Board had paid in the previous year £80,000 in subsidies to bus companies, resulting from rail closures. He said that that £80,000 had saved the Railways Board £6 million. I wonder

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whether the noble Lord, Lord Champion, can give us corresponding figures to-day. The Minister also described very lucidly the procedure that is gone through when proposals are submitted by the Railways Board for closure. If, in the Minister's view, they are non-starters, he—or, of course, to-day, she—returns them to the Railways Board immediately, thus avoiding the whole procedure with which my noble friend now finds fault. If the Minister does not reject the proposals at first sight, they go to the Transport Users' Consultative Committees to be considered on the basis of hardship, and also to the Regional Development Council, if there is one, to be examined on the basis of present and future plans for that region. In the light of the opinions and the information provided by the Committees and Regional Councils, the Minister makes her decision—a refusal or a consent.
The noble Lord, Lord Lindgren, said at this point, "If there is a refusal, everybody is happy." I can hardly believe that this is exactly so, as the Railways Board will not be notably happy to have their proposals rejected. I wonder whether the noble Lord, Lord Champion, can tell us, from figures which he may have brought with him, how many proposals for closure are dismissed at the outset by the Minister, how many are dismissed after scrutiny by the Committees and further consideration by the Minister, and how many are ultimately approved. I imagine that the noble Lord will not have very precise or up-to-date figures under his hand, and I have not given him notice of this question, but some idea of the proportion might be a help and might even serve to comfort my noble friend in his desire that justice may be done and may be seen to be done.
By and large, I do not anticipate that there will be any great dispute between the noble Lord, Lord Champion, and myself if he confirms that his colleagues still see the future of the railways in the same way as we saw them—that is to say that the railways will cope with the fast, long haul of goods and passengers between areas of dense population, leaving the lorry and the bus to cope with the delivery from and collection to a railhead of passengers and goods in less populated areas. This was the
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terminology, which I am repeating purposely, of the noble Lord, Lord Lindgren, on the previous occasion. This seems to me not only logical but inevitable.
In closing, I must give my noble friend a second warning as to why he should not expect very much support to-day from the Government Front Bench, a reason apart from the illogical, inconsequential and random nature of Socialist Government. The noble Lord, Lord Champion, is in fact one of the Government's more logical members. He also made the only robust and commonsensical observation which I can remember from the Opposition of that day while these rail closures were being discussed in the time of the previous Administration. On July 25, 1963, he intervened pithily to say:
"There is one way of saving branch lines, and that is to use the darned things".
That remains true to-day for me. I suspect that it remains true also for the noble Lord, Lord Champion. I hope that it will not be long before by noble friend is converted to our trans-cameral company.
5.38 p.m.
VISCOUNT ADDISON: My Lords, contrary to the expectations of the noble Lord, Lord St. Oswald, and of Members on this side of the House, I rise to support the Bill. I am very sorry if I find myself at some difference with my noble friends on this matter. I think that the noble Earl, Lord Kinnoull, is to be congratulated on persevering with this kind of measure, and I feel that any action which can be taken to increase the powers of transport users' consultative committees should receive support from transport users in general—in other words, from the general public; because the consultative committees were, as I am informed, set up to serve the interests of the community. I think that it is fair to assume that there has been some slight softening in the attitude of the Ministry of Transport since the last Election, indicating a more sympathetic approach to the social aspects attaching to the railway service. Therefore, I hope that this Bill may receive the consideration which I feel it deserves.
Without wishing to be unduly critical of the function of the Railways Board, who are not here to defend themselves. I feel that there has been a good deal

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of divergence between the way in which the Board's function has been pursued and the interests of the general public. Near, my home in Devonshire is a place called Sampford Peverell, and consideration is at present being given to accommodating here some of the so-called Greater London overspill. The Devon County Council recently have surrendered areas of Devon, including Torquay and its environments, and some areas adjacent to Plymouth, to provide new county boroughs, with the resultant loss of rates, and it is for this reason, among others, that the County Council made approaches to the Greater London Authority with a view to providing accommodation both at Sampford Peverell and near Barnstaple, in North Devon. The matter is, I think, receiving ministerial consideration at present and, of course, is the subject of much local controversy, as might well be expected from the inhabitants of the West Country.
As I was passing this area last Friday, I was interested to see a considerable gang of men, working with great industry and dispatch, pulling up and taking away the railway line to Sampford Peverell station. This line has been out of use for about two years, and, to say the least of it, it seems to me to illustrate a lack of co-ordination that after all this time there should now be any reason to take this somewhat drastic action, in view of possible future developments. We shall be told, of course, that this is a matter for the Railways Board—a reply which has consistently been given to noble Lords in your Lordships' House who have raised any questions relating to railway management or closures, regardless of which Party has been responsible for the Government.
Although I believe that some change in policy was announced in another place as recently as yesterday, it is my recollection that when the present Government first came into office in 1964 an agreement was reached with the Railways Board that no further railway lines were to be removed pending consideration of their future use. The current action of the Railways Board at Sampford Peverell, and at many other places, seems contrary to this agreement. I am beginning to wonder whether it is not so much a matter for the Railways Board as a matter of the
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Railways Board. Who are they to decide to remove railway lines before it has been agreed whether or not a new town shall be provided at a particular site?
My criticism of the Bill—and I am sure the noble Earl will forgive me for saying so—is that it does not go far enough. I have always felt that the transport users' consultative committees have no teeth, and I feel that they ought to be provided with them. But, so far as the Bill goes, I will certainly give it my support, and I hope that your Lordships will grant it a Second Reading.
5.43 p.m.
LORD HAWKE: My Lords, I am not in favour of keeping wildly uneconomic railways open, but the difficulty is to find out what are wildly uneconomic railways. It is a well-know fact, as anybody who has had anything to do with railways knows, that it is difficult to put a cost on the operation of any particular piece of a railway. I think it is important that these transport users' consultative committees should have power to challenge figures put before them, in view of the fact that those figures are so difficult to arrive at and are so eminently challengeable.
Let me give your Lordships an example. If you are trying to evaluate, say, a branch line, and your railway accountant is told to make the costs as high as he can, he will probably charge the coach maintenance on that branch line at the same rate as he would on a main line, notwithstanding that the coach runs a much lower mileage during the year and does not wear out its doors half as quickly. He might put the full cost of station maintenance down, notwithstanding the fact that the station had to be closed and treated as a halt. He might take figures for main-line track maintenance and apply them to this particular line. He might depreciate the rails at a main-line rate, where trains are running every few minutes, whereas this branch line might have very few trains running a day. I have seen rails fifty or sixty years old on railways where they are very lightly trafficked, but on our main lines they have to be renewed much more often.
I do not say that points of this kind will not condemn a large number of the railways which the Board are seeking to close, but the transport users' consultative committees should have power to

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argue the figures. Arising, also, from their power to argue the figures, they ought to have power to look into the question of running the railway in a lower category, either as a light railway or reducing the station halts, locking the points, et cetera, and running it as a form of tramway.
There is no question at all that although many of these lines are used only at certain times of the day, when they are being used they area far more convenient method of travel to the people who use them than the alternative, because at the rush hour, morning and evening, buses on the narrow roads of this country are a very slow method of locomotion, whereas these lines have no traffic in the way. That is the experience on the commuter feeder lines of Sussex, and the closing of one of the most important of these has added considerably to the time of the working day of all the commuters who used to use it. For that reason, for the power that my noble friend seeks to give to the transport users' consultative committees to argue on these particular points before the Railways Board, I would support his Bill, but not for the reason that I wish to keep uneconomic railways open.
5.47 p.m.
LORD CHAMPION: My Lords, I am sure the whole House is grateful to the noble Earl, Lord Kinnoull, for the way in which he has introduced his Bill this afternoon. He has done it with care and courtesy, and with arguments which must appeal to a number of Members of this House. I was also deeply interested in the typically lively and rumbustious speech of the noble Lord, Lord St. Oswald. But I was grateful that he quoted me on only one passage, which I am always glad to have quoted, on this matter of railway closures: "If the public want to retain 'em, use' em". Do not expect these railways to remain open just in order that when your car breaks down, or it happens to be snowing and you cannot use the road, the railway will be there. The country simply cannot afford to continue on that basis, keeping many of these branch railway lines in being when, clearly, their purpose and use have ceased, except for these odd occasions.
But this is not the purpose of the Bill. Its purpose, as I understand it, is to try to give to the transport users'
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consultative committees powers which they have not got at present. The noble Earl, Lord Kinnoull, recognises that these committees perform a valuable function in reporting to the Minister on hardship, so he wishes to extend the scope of their duties. He wants to extend their duties so that they would sit and adjudicate, as it were, over the whole range of railway activities. This is a very wide proposal indeed. I must say that I sympathise with the noble Earl's motives, and I sympathise with the point of view of my noble friend Lord Addison, but I am opposed to the Bill that has been introduced this afternoon. In spite of its superficial attraction, we regard the Bill as misconceived. If we look at it more closely, it raises a welter of practical difficulties. Let me explain.
What are the functions and duties of the transport users' consultative committees as laid down by Parliament in the Act of 1962? And I am bound to say that I did not at that time hear the noble Lord, Lord St. Oswald, querying the soundness of the Act and what might flow from it. But he was not quite in a position to do that, because he was then a Minister.
LORD ST. OSWALD: I have not quoted that to-day.
LORD CHAMPION: What I am doing now is, to some extent, to speak in favour of something which the last Government did, although I shall eventually point out that that Act has certain faults which we shall have to remedy.
The functions and duties of the T.U.C.C.s are, first, that they are required to report to the Minister on the hardship which may result from a rail passenger closure. So their reports are a public safeguard and make sure that the Minister is fully informed on how many people will be affected by a closure, on how badly off these people might be, and to what extent alternative bus services might cater for their essential needs. It is vital to the man in the train that T.U.C.C.s should continue to do this job right and find out just how he, the man in the train, will be affected.
Secondly, T.U.C.C.s can make recommendations to the Central Transport Consultative Committee, who in turn can recommend to the Minister, if they think

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that the quality of this or that existing railway service should be improved. They can make these recommendations in any circumstance which they feel justifies them—as a result of complaint from the travelling public, or after the Minister or the Railways Board has referred a problem to them, or because they themselves have looked into one and decided that certain deficiencies should be remedied. For example, if the Railways Board reduce the number of trains along any particular line, or calling at any particular station, the T.U.C.C. can report to the Minister if they think that the revised service does not fully meet users' needs. And they can do the same for freight services.
It seems to me that what some noble Lords may not have realised is that the Bill would enormously extend the matters which the T.U.C.C.s could examine. First, it would enable them to look into all aspects of a passenger closure, not just hardship. And secondly, it would enable them to examine in every detail any reduction in passenger services short of closure, and also any reduction or discontinuance of freight services which the Board have in mind before it takes place. In other words, every single timetable alteration which meant that there would be one passenger train fewer, every single solitary re-routing of a goods train by a different line, every urgent decision by the Board designed to modernise and speed up the rail transport of merchandise by concentrating depots and closing moribund stub-end lines to freight—all these could become the proper consideration of T.U.C.C.s before they took place. The Railways Board would in effect have to surrender their immediate control of their day-to-day operation, and indeed possibly details of their long-term planning. They could no longer be confident of retaining more than the semblance of independent management.
We must allow management to manage, subject of course to the Minister's safeguarding powers. The Minister has these, and acts upon the advice of several bodies, a subject to which I shall return a little later in my speech. It is easy for us who know anything at all about this to imagine the serious effect the Bill could have on the drive to transform Britain's passenger and freight services into a
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system fit for its needs in 1966, 1976 or 1996. The progressive modernisation of the railways could be seriously jeopardised if any proposals by the Board to improve the system were exposed to the delays which are a natural consequence of having the matter in hand looked at by a separate body. If I were a railway manager trying to do an honest job, as they all do, for the railways, I should think it quite wrong to have such a body entering at the stage which is here suggested. It would destroy management and I cannot imagine anybody engaged in private industry who would welcome such a body at such a stage.
Past experience has not shown that this suggested extension of powers is necessary. Since the 1962 Transport Act was passed, the Minister has so far never needed to give the Railways Board a direction arising from inadequate services. Common sense has always prevailed before that stage was reached. Any difficulties that have arisen from reduced services have not called for ministerial action. So that there is no call for T.U.C.C.s to report to her before some of the reductions that I have mentioned take place. So at least I would suggest to the noble Earl that one effect of the Bill is both unnecessary and damaging.
But what of the section which would enable T.U.C.C.s to consider all aspects, including financial, of a rail passenger closure? As I said at the beginning, this may appear superficially attractive. But in practice the idea is misconceived. In the first place, T.U.C.C.s are not bodies of experts competent to pronounce on all aspects of a proposed closure. I hope that nobody will misconstrue these words. I am not casting any doubts on the way that T.U.C.C.s do their job. Her Majesty's Government are most grateful for the time which T.U.C.C. members voluntarily sacrifice, for the care and effort with which they carry out the duties which they have accepted, and for the sound common-sense reports on hardship which they send to my right honourable friend the Minister.
I understood the noble Earl to say that the reputation of the T.U.C.C.s has sunk low. We have no evidence of this. We have no evidence that there are reports that are not, as always, carefully compiled, intended to make sure that the Minister is advised on the aspect on which

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they are competent to advise—namely, hardship. I still have confidence that these T.U.C.C.s carry out the function which has been laid upon them.
But T.U.C.C.s themselves would, I am sure, be the first to admit that they do not have the expertise to examine, say, the financial, or the planning or the highways aspects of a closure proposal. They are constituted to give the Minister the sensible advice she needs about hardship which ordinary men and women may suffer from a passenger closure. That is their job. They do it well. The 1962 Act recognised this and confined the T.U.C.C.s functions and duties to the task they could do well and with the authority of people who represent the interests of actual users of passenger services. It would not be profitable, it would not be wise, to ask them to do other jobs for which they arc not equipped.
Let me illustrate this. The noble Lord concentrated some part of his speech on giving the T.U.C.C.s power to consider financial aspects of a closure. But could a T.U.C.C. weigh effectively the financial case put forward by the Board for closure without being fully informed of every single piece of evidence involved? The key issue in any closure decision is whether the savings to be achieved outweigh the disadvantages. So any assessment by the T.U.C.C.s of a closure proposal as a whole—as distinct from the assessment of hardship involved—would be meaningless without an appraisal of every single aspect. But the system of expert advice which my right honourable friend already receives reflects the simple fact that the bodies most competent to advise are different on different aspects of a passenger closure proposal. The noble Lord, Lord Hawke, cast some doubt upon the Board's honesty and integrity in presenting the figures to these T.U.C.C.s.
LORD HAWKE: My Lords, I did not cast any doubt about their honesty and integrity. I merely said there are many different ways of approaching these figures and the Committee should be entitled to know by which method they have been arrived at.
LORD CHAMPION: Surely the noble Lord did say that they presented their figures in such a way as to mislead the T.U.C.C.s. If he did not say that, clearly I do not understand what he was getting
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at. The Minister in the Conservative Government, Mr. Ernest Marples, himself had some doubts about the material that was presented, or at least he felt that the feeling about this was so strong that he ought to do something about it, and he referred this whole matter of the presentation of this financial aspect to the T.U.C.C.s, to Sir William Carrington, who is a member of an independent firm; and his report was of such a nature that it certainly satisfied me, and so far as I can tell completely satisfied Mr. Marples when he was Minister of Transport. Whatever I might think of Mr. Marples, of this I am absolutely positive, it was never easy to pull the wool over his eyes in transport matters.
LORD ST. OSWALD: Hear, hear!
LORD CHAMPION: I expected the noble Lord, Lord St. Oswald, to say, "Hear, hear!" I am glad he rose to my little bait, the fly I cast over his nose. As I have already said, the system of expert advice that my right honourable friend already receives reflects the simple fact that the bodies most competent to advise are different on different aspects of a passenger closure proposal. For example, she is advised on planning implications by the regional Economic Planning Councils; this to some extent answers the point of my noble friend Lord Addison. So here is advice on what these planning councils think may happen in the future, and advice on the wisdom or otherwise of doing something about rail closures. That is one aspect.
The Board of Trade advises about the effect on trade, industry and commerce; the Ministry of Labour about the effect on employment. The Minister's own divisional road engineers provide an expert assessment of the extra traffic that a closure will put on to the roads, whether roads will have to be widened, how much it will cost, how far displaced rail passengers transferring to bus will be delayed by congestion. All this is in addition to the advice on hardship which she receives from the T.U.C.C.s.
LORD ST. OSWALD: My Lords, may I ask one minor question in parenthesis? The noble Lord says, for instance, that advice is taken on what changes may be required in road engineering upon a rail closure, but I do not think the rail

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closure is necessarily held up until that piece of road engineering is effective, is it?
LORD CHAMPION: No. What the Minister has to do is to take all this information into consideration. Quite clearly, if strain would be placed upon the road as a result of closure, in the view of the divisional road engineers, then in taking her decision she would have to consider the presentation they had made of the possible facts and its consequences. The inference here, it seems to me, is inescapable. The responsibility for making the total assessment of a closure proposal can rest only with my right honourable friend the Minister. Only she is in a position to make a balanced decision in the light of all the information supplied by all those bodies I have mentioned.
It would serve no good purpose, quite the contrary, to empower T.U.C.C.s to consider each proposal in all its aspects. It the T.U.C.C.s are going to consider it in all its aspects, all these bodies I have mentioned must give this advice to the T.U.C.C.s, and eventually when the Minister takes her decision under the 1962 Act she then has to consider all this afresh, and in some cases she might have to consider it in the light of what has been presented at head office, as against, for example, what the local engineer might have suggested so far as roads are concerned. The responsibility must rest with the Minister. As I say, only she is in a position to give a balanced decision. This must be the job of the Minister, who is responsible for her every decision to Parliament, and this is right. She can be questioned on what she does in this connection. She has a responsibility to Parliament, and Members of Parliament can of course question her every act in connection with these matters for which she is responsible.
So far I have described how Her Majesty's Government view this Bill. But it is also worth reflecting on how the T.U.C.C.s themselves would view it. Naturally, I cannot speak for them, but it seems to me to be significant that some time ago the T.U.C.C.s themselves recognised the danger of their being dragged into fields of discussion in which they were not in a position to express sound
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views. I believe this is important. This is a practical point of very real moment and I think weighs very heavily against the Bill which the noble Lord has recommended to us to-day.
Of course, Her Majesty's Government are opposed to this Bill, but not for any Party political reasons, although, of course, this Bill was introduced by the Party opposite when they were in power. But the present Government have examined the 1962 Act critically and found some faults, and I hope that the noble Lord, Lord St. Oswald, will not have to wait too long before he hears what is the result of the examination of faults we have found in the 1962 Act. Undoubtedly, when we present the White Paper, which will not be too long delayed, I shall have the tremendous advantage of his advice and wisdom in this connection.
The White Paper will be a diagnosis of the faults we have found, and we shall propose their cure. But Her Majesty's Government are satisfied that the provisions relating to T.U.C.C.s would not be improved by this Bill. It could, and might well, delay and damage the railway modernisation that we so urgently need. It would place a heavy burden of work on T.U.C.C.s in fields for which they are not constituted. Finally, it is, I repeat, only the Minister herself who can take the decision on closure. She alone is in a position to weigh up all the facts, financial facts included, and cannot delegate her statutory responsibility to another body. I respect the noble Lord's motives for introducing this Bill, but I shall eventually have to advise your Lordships that Her Majesty's Government consider that it is at best unnecessary, and at worst would block railway progress.
We have had an interesting debate. Matters have been aired which the Government will reflect upon seriously. I think I may fairly say that what has prompted the noble Earl to introduce his Bill is not far removed from Her Majesty's Government's own intentions in preparing and launching a policy for maximising the transport potential of this country—namely, that we should make the best use of our transport resources and ensure that, where changes are proposed, the best and most informed decisions are taken. I can assure your

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Lordships that the Government are determined that any significant changes in our railway services will be consistent to this end.
I think I must just say a word about the point made by my noble friend Lord Addison concerning the taking up of lines. My right honourable friend yesterday announced in another place the policy that she has adopted for the disposal of redundant assets on closed lines. I can well understand why my noble friend has some doubt about this. But I want to make it quite clear that I think that, once the decision has been taken, assets on lines which are closed should be sold as quickly as possible. The rails should be taken up as soon as possible, and the signalling and other equipment should be sold as soon as possible because, if it is not, we can expect the rails to be stolen or destroyed by vandalism. I am sure that my noble friend knows of many signal boxes and so on that have been pretty well destroyed by vandals, and of signalling equipment being stolen almost as soon as there is no one working on the lines to keep an eye on it.
VISCOUNT ADDISON: My Lords, if I might interrupt, there is certainly the question of what is going to be used in the way of equipment in the future if the line is going to be needed again later. It should not be put up for sale in those circumstances.
LORD CHAMPION: My Lords, this is what I was coming on to. What are the safeguards in this connection? Previously, by arrangement, the Board have had to apply to the Minister for permission to dispose of the track, signalling apparatus, station buildings, et cetera, on a closed line. The point of this control was to make sure that no disposal would take place which might prejudice the restoration of rail services in the future, should that ever become necessary as a result of long-term planning decisions. In other words, the arrangement is a safeguard in the interests of the planned transport system of the future.
My right honourable friend has now decided that the safeguard can be made completely effective without the need to secure her approval for disposing of the actual track of the closed line or of station buildings. The essence of the safeguard is control over disposal of the for-
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mation of the line—that is, the land on which the actual track is laid—and the sites of the stations and accesses to them, as distinct from the buildings occupying the sites.
If in the future, having retained the sites, having retained the land upon which the track would have to run, it is found that it is necessary in a process of development again to open a line there, it will be comparatively easy to lay that track and to re-signal it—as re-signal it you would have to, judging by the way much of the equipment attached to and used in signal boxes, and so on, is stolen. The important thing is not to allow free disposal without sanction of the bed of either. And the Minister will in future consult the Economic Planning Council concerned before deciding each application. Meantime, the Board can go ahead and capitalise on redundant track, and so on, the sale of which brought them in £2 million in 1965—no inconsiderable figure, despite the size of the deficit at which the railways are running. The same sort of principle is at work in the closure procedure itself. What we want is efficient, smooth machinery directed at practical ends without unnecessary encumbrances. This is wholly to the benefit of the railways, the users and the taxpayers generally.
My Lords, on the assurances that I have given, and for the special reasons that I have detailed, I appeal to the noble Earl, Lord Kinnoull, not to ask the House to give this Bill a Second Reading to-day. If he does decide to proceed to a vote, I strongly advise your Lordships not to give this Bill a Second Reading.
6.18 p.m.
THE EARL OF KINNOULL: My Lords, in exercising my right of reply, I feel that possibly this short debate has gone a good deal outside the purposes of the Bill. One of the criticisms which the noble Lord, Lord Champion, raised—the noble Lord, Lord St. Oswald, raised it as well—was that this Bill would cause delay to railway progress, that it would block railway progress. In fact, all that this Bill seeks is that at these hearings a fair hearing should be given to both sides. I personally cannot think that this Bill can delay railway progress in any way. As these hearings have been likened to planning appeals, with which I am occasionally concerned, I would say

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they are absolutely parallel, until we get to the T.U.C.C. hearing, when one side is allowed to produce a case which cannot be questioned by the other side. This we seek to change.
I think that Lord Champion's reply is most disappointing. There has been a complete turn-round by members of the Government since they were in Opposition. I could quote many of their previous sayings in 1963 and in 1964; even the powerful Chief Whip supported this point. I think that I must urge the
Resolved in the negative, and Motion for Second Reading disagreed to accordingly.

FAMILY PROVISION BILL [H.L.]
6.26 p.m.
Order of the Day for the Second Reading read.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, I beg to move that this Bill be now read a second time. I am sorry to bring the House back from the entrancing subject of railways to what is a mere question of common humanity. This is a law reform Bill, and the field with which it deals is the economic position of a wife after the death of her husband.
At present the law in this field is covered by three Acts or groups of Acts. There is, first of all, the Matrimonial Causes Act 1965, which did not produce new law because it was a consolidating
House to support the Bill, in view of the fact that there is evidence from over 200 authorities in support of the Bill. I believe, too, that there is evidence that certain members of the Committees are also dissatisfied with the present procedure.
6.22 p.m.
On Question, Whether the Bill shall be now read 2a?
Their Lordships divided: Contents, 11; Not-Contents, 38.

CONTENTS

Addison, V.

Ferrier, L.

Somers, L.

Audley, B.

Gridley. L.

Strange of Knokin, B.

Balerno, L.

Kinnoull, E. [Teller.]

Stuart of Findhorn, V.

Burton, L. [Teller]

Lambert, V.

NOT-CONTENTS

Archibald, L.

Hilton of Upton, L.

Segal, L.

Attlee, E.

Leatherland, L.

Shepherd, L.

Beswick, L.

Lindgren, L.

Silkin, L.

Brockway, L.

Lloyd of Hampstead, L.

Snow, L.

Campbell of Eskan, L.

Longford, E. (L. Privy Seal.)

Sorensen, L. [Teller.]

Champion, L.

Mitchison, L.

Southwark, Bp.

Darwen, L.

Morrison, L.

Stow Hill, L.

Denning, L.

Peddie, L.

Summerskill, B.

Gardiner, L. (L. Chancellor.)

Phillips, B. [Teller.]

Taylor, L.

Granville-West, L.

Rhodes, L.

Teynham. L.

Greenway, L.

Royle, L.

Wakefield, Bp.

Hall, V.

Sainsbury, L.

Williamson, L.

Henderson, L.

Samuel, V.

Act. Section 25 of that Act provides that where, unhappily, the parties to a marriage separate and there is a separation agreement the maintenance under which is to last after the death of the husband, as on a husband's death the circumstances may be quite different from those originally envisaged, the wife may on her husband's death apply to the court to vary the maintenance agreement. Section 26 of the same Act deals with the case where there has been a divorce, the wife does not re-marry and the husband dies. It gives the court power to award maintenance to the former wife out of her husband's estate. The second group of Acts comprises the Administration of Estates Act 1925 and the Intestates' Estates Act 1952, which together answer the question as to what the wife is to get if her husband dies without leaving a will.
The third group comes under the Inheritance (Family Provision) Act 1938.

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Your Lordships may remember that Parliament was very hesitant about this Act. If a husband has cut his wife out of a will, that Act entitles the court nevertheless to order maintenance to be given to her out of his estate. On the one hand, it was said that it cannot be right that if a woman has been a good wife to a man for many years, and has perhaps borne him several children, she should have to live on National Assistance, just because at the end he either falls for some young woman or has a quarrel, as old people sometimes do, and goes to a solicitor and cuts his wife out of the will. It is only right that in such a case a court should have power to provide some reasonable maintenance for her. On the other side, it was said that this was an interference with the sacred rights of property and the sacred right of a man to do what he likes with his own money. The former view prevailed, but Parliament hedged round the powers of the court and limited them a good deal because there had been this difference of opinion and because, after all, they were giving the court a power which it had never had before.
I move the Second Reading of this Bill, which deals with a number of anomalies that have arisen in this field over the years. Something happens which Parliament had not thought of, or a judge construes the section to produce the result which Parliament had not intended, or—what has become an old friend; or perhaps I should say an old enemy—a sum of money, which was intended in an Act to achieve a given result, can no longer achieve that result, due to the fall in the value of money. So that the Bill consists of a number of quite unrelated points. With that, I think I can come at once to the clauses.
Clause 1 deals with the Administration of Estates Act, as amended by the Intestates' Estates Act 1952. The law as it now stands is that if someone domiciled in England or Wales dies and leaves no will then, first, if there are no children, parent, brother or sister or their issue surviving, the surviving spouse—ordinarily, of course, the wife—takes the whole of the residuary estate. Secondly, if there are children, or a child, the surviving spouse takes all the personal chattels, the furniture, and in addition is entitled to a charge of £5,000, free of duty,
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on the residuary estate, and to a life interest in half the rest. If there are no children but there is a parent, brother or sister or their issue surviving, then the surviving spouse takes the personal chattels, and in addition is entitled to a charge of £20,000, free of duty, on the residuary estate, and to an absolute interest in half the rest.
The figure of £5,000 was originally, in 1925, £1,000. By 1952, owing to the change in the value of money, its effect was, of course, quite different. The original intention of the £1,000 was to enable the widow to buy the matrimonial home, but by 1952 a quarter of a century had passed and two things had happened: the value of money had fallen, and even greater than the fall in the value of money had been the rise in the price of houses. The situation was considered by a Committee, of which my noble and learned friend Lord Morton of Henryton was Chairman, and they pointed out that the object was to enable the widow to buy the house. They said that £1,000 for this purpose was no use in 1952, and that the proper equivalent, judged in terms of the increase in the price of houses, was £5,000.
Now another fourteen years have gone by, and again what was a proper sum of money in 1952 is no longer appropriate to-day. Since 1952 the value of money has fallen by 50 per cent., but the increase in the price of houses has risen still more. Of course, it varies according to the size of the house and in different parts of the country but, by and large, the increase in the cost of housing has been somewhere between 60 and 80 per cent., and it is thought that, in relation to the sort of house most usually in question, 75 per cent. would represent about the right amount. So that all Clause 1 does is to increase this £5,000 by 75 per cent. When we come to the £20,000. as that is only related to the value of money and not to the price of houses, the Bill increases that figure to £30,000; that is to say, by 50 per cent. But then the clause also does what your Lordships have agreed to on several recent occasions. We do not want to go on for ever having these sums of money in Acts of Parliament which, with the continual fall in the value of money, are always becoming unrealistic, and which we then have to wait years and years

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to get altered, because of the pressure of legislation. It allows the sum of money to be changed by an Order made by the Lord Chancellor, subject to the Negative Resolution procedure.
Clause 2 concerns quite a different point. Originally, under the Inheritance (Family Provision) Act, the court could not award more than two-thirds of the income of the estate. Naturally enough, there was a proviso which said that if the testator had disposed of part of his property by will, and had left the wife something, then if he had left her two-thirds she could not make an application. This was consistent, because if the court could not award more than two-thirds and she already had two-thirds, then there would be no point in her making the application. But as time went by, and it was found that the judges did not award widows very much—and, if anything, I think that some of us thought that in some cases, perhaps, they awarded the widow too little—there was no need for the limitation which had been placed on the power of the court in 1938. So the 1952 Act removed the limitation that a judge could not award her more than two-thirds.
In the case of a very small estate where, merely because he has had a sudden row with his wife, a husband goes and leaves everything to the cats' home, and where the income brings in very little, there is sometimes, of course, a case for awarding her the whole of the annual income from the estate. But although the 1952 Act removed this limit on the court's power, it left the proviso standing, so that it was still the case that if the wife was left two-thirds by her husband the court could not order any more. I do not know whether this was simply a slip in 1952, but of course a serious anomaly has arisen as a result.
If a man who has had a row with his wife now goes to his solicitor and says, "I have decided to cut my wife out of my will. I have read in the papers that the judges have some powers, even if I do that, to give her something. Is this right?", the solicitor then has to say, "If you leave her nothing a judge can award her the whole of the income. But if you leave her two-thirds then he cannot do anything. So if you want to do her down, the sen-
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sible thing to do is to give her two-thirds." There have been cases in which a spiteful husband has actually done that. So the object of Clause 2 is to remove the proviso and, therefore, to stop that anomaly.
Clause 3 is retrospective legislation. We have once or twice in this House discussed retrospective legislation, so may I wave a large red flag and say that this is retrospective legislation. What has happened here is a little more complicated, but if I may put it shortly the position is this. From time to time the judges have said, "In this case what the widow ought to have of this perhaps not very large estate is half whatever the income is for the time being" or "three-quarters" or "the whole"; and orders of that kind have been made ever since 1952. I think it goes back earlier, but certainly that has been done since 1952.
In January of this year, the Court of Appeal looked closely at the section of the Act in question, and they said, "All these orders have been ultra vires, because on our construction of the section all a judge can do is to ascertain what, at the date when the application comes before him, is the actual income which is being produced from the estate, and to give her a specific sum of money." The judge cannot say that it is to be whatever the income for the future may be, or a fraction of it. He can deal only with the then income, and he must fix a sum of money.
An actual case before the court is perhaps a clear illustration. This was a case in which a man's estate was in rent-controlled leaseholds, and produced an income of £500 a year. In later years they became decontrolled, and the rents thereupon increased to £1,000 a year. But the court said that, at the time when the order was made, the judge could deal only with the £500 a year. I do not doubt that this was the right construction of the clause as a matter of law. It arose because the definition of "annual income" was a somewhat complicated one. I do not think I need trouble your Lordships, on a Second Reading, with the details of it, and I am not questioning that it was right as a matter of law, but this means that many orders which have been made in

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the last 25 years have now been held to be ultra vires.
What is proposed now is not only to put that right, so that a court will in future be able to say, "The widow ought to have half whatever the income is", but also to deal with orders which have already been made. It is thought that, in these particular circumstances, this is a proper case for validating these orders—because, if we do not validate them, what will happen? Other interested parties will appeal if the time for appeal has not expired; if the time for appeal has expired they will ask the Court of Appeal to extend the time (whether they would do so or not, I do not know); and, at the end of the day, a court will want to make a new order of exactly the same nature as the orders now declared to be ultra vires, so a great deal of unnecessary costs will have been occasioned. As to the past, in the case of an old order, if the Court of Appeal were to extend the time for appeal and had to rule that these old orders were ultra vires, the widow would find herself liable to pay back sums of money which she would not now obviously have, and would probably have nothing left on which to live. It is therefore submitted that this is a proper case for retrospective legislation to that extent.
Perhaps I should say that this decision was given only in January. We are now in June. Your Lordships may remember that when we were discussing another Bill only a day or two ago the noble Lord, Lord Lloyd of Hampstead, pointed out that the Law Commission has got what they call an immediate remedial department which is intended to spot anomalies as soon as they arise, so that if legislative occasion can be found they can be dealt with at once, instead of being left to fester for years, producing injustices. In relation to this Bill, I have throughout been much assisted by the Law Commission and their draftsmen because your Lordships may remember that their first programme specifically includes family law, and they are considering the whole question of property rights between spouses. It seemed to me desirable therefore, that they should express views on this Bill to make sure that nothing in it was going to conflict with the task which they have undertaken in this field; and I should like to acknow-
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ledge my indebtedness to them and their draftsmen in relation to the whole of this Bill. But it is getting very close, I think, when an anomaly arising only in January can be put right in June.
Clause 4 is partly an anomaly and partly a question of the value of money. On any application for maintenance it would give the court power to order a lump sum, either out of the estate of a deceased parent or spouse under the Inheritance (Family Provision) Act or out of the estate of a deceased former spouse under Section 26 of the Matrimonial Causes Act 1965, without any restriction as to the value of the estate in question. Under the current law no such order can be made if the value of the estate in question exceeds £5,000. Now here is another case in which an obvious alteration ought to be made because of the fall in the value of money.
But we asked ourselves, "Is this really a case in which there ought to be any limit at all?" There are, under the other powers to which I have referred, cases in which lump sums can be ordered instead of an annual sum, and in some circumstances this has been found to be obviously the sensible thing to do. As it could be done under other Acts, it seemed desirable to preserve consistency between them, and there seemed no particular reason for a limit. This clause, therefore, in the main, merely gives to the court the power, where it thinks right, to order a lump sum instead of an annual figure.
My Lords, Clause 5 deals with the question of time limits. There are three Acts under which the times for making applications are slightly different. I need not go into the details, but those Acts are worded differently. One is a day different from another, and in the case of another it is rather doubtful from what point of time the limit runs. So it is proposed that under all three Acts the time limit should be the same. But then we get into the difficulty that, under the Inheritance (Family Provision) Act, you must make your application within six months, and the court has power to extend the time in only three cases: first of all, if a will or codicil is discovered; secondly, if a question has been determined as to somebody's having an interest in the estate which had not been determined when representation was first taken out; or,

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thirdly, in consequence of some other circumstances affecting the administration or distribution of the estate.
I am sorry to say that there have been a number of cases in which the application has not been made in time because the solicitors have overlooked the time limit. Of course, where a solicitor does that, nobody would doubt that it is negligent on his part to do so, because lawyers are supposed to know the law, and time limits in particular. Therefore the applicant would have a right of action for damages for negligence against her solicitor. But if the solicitor said, "Very well, I was negligent; I will pay", they have then both to try to guess what order the court would have made, if any, if the application had been made. If no party has suffered damage by the delay, it would seem much more satisfactory to give the court power to extend the time. At the moment, however, a court says, "The words, 'in consequence of some other circumstances affecting the administration or distribution of the estate' cannot include the negligence of a solicitor" and therefore if a solicitor is a day late in his application the court has at present no power to extend the time at all. There was another case in which the application was made 48 hours too late because there had been a "Go-slow" at the Post Office. It seems very much more sensible, your Lordships may think, to give a court power to extend the period of six months if, in all the circumstances, it is the fair thing to do. So that is really what Clause 5 does: it makes consistent what at the moment are different time limits for making applications, and it gives the court power to extend the period of six months in whatever circumstances the court may think it fit to do so.
Clause 6 arises in this way. When the Inheritance (Family Provision) Act started in 1938—and, as I have reminded your Lordships, Parliament was a bit nervous about it—somebody said, "We are going to give this power to the High Court, but some of these estates might be quite small estates. Why do we not let them apply to the county court?" The answer to that was, "We are giving judges power to interfere with what a man does when he leaves a will. This is something quite new, and we do not know how it is going to work. If it works all right,
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then later on we can extend it so that the county courts can take the smaller cases, but we had better start off by leaving it simply to the High Court Judges"; and that was done.
But on March 17 (instant remedial action, indeed!; we are now at June 16, which is less than three months) a case came before Mr. Justice Ungoed-Thomas in the Chancery Division. under the Inheritance (Family Provision) Act, and he said, "This is a very small estate; look at the amount of the costs that are going to be taken away from the widow through having to bring it in the High Court instead of in the county court". Now that the judges have developed their policy over twenty or thirty years, there is no reason, I apprehend, why the county court should not deal with small cases; and, with the approval of the President of the Probate Division and the senior Chancery Judge, it is suggested in this clause that, in the case of estates of less than £5,000, the application can be made to the county court in lieu of the High Court. If, in spite of that, it started in the High Court, the High Court Judge will have power to remit the action to the county court. And again the clause provides that the Lord Chancellor may be entitled to vary this sum of money by an order which will be subject to the Negative Resolution procedure. May I just say that this is not a branch of the law that I know anything about, and I am relieved to see the noble and learned Lord the Master of the Rolls here, who can put right anything I say which may be wrong in regard to the law.
Now we come to Clause 7. This is an awful matter and I do not propose to go into it in detail. May I, however, just explain the point briefly? The point is that once upon a time there was a Mr. Keeling, who was a Member of Parliament and a barrister. He wrote a letter to the Prime Minister and he got some others to sign it, too. He said: "It is hard enough for us lawyers to understand some of these Bills, but it is very difficult for people who are not lawyers. When you get a Bill which makes a lot of amendments in an existing Act of Parliament, would it not be a good idea if you had a Schedule in the Bill which showed what the Act would look like if all the Amendments which were proposed in the Bill were

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made to it? You can put in dots to show what has been left out, and put in bold type the changes that have been made."
This has sometimes been done since. On another Bill recently—I think it was the Criminal Justice Bill—the noble Viscount, Lord Colville of Culross, asked why we should not have a Keeling Schedule; and I might mention that, as is only fair, this kind of Schedule has since been known by the name of its inventor. I think I satisfied the noble Viscount that on that particular Bill it would not really have helped. However, I am always anxious to please, so in this Bill Schedule 2 is a Keeling Schedule which sets out what the Inheritance (Family Provision) Act will look like if the various changes proposed in this Bill are made. The point about Clause 7 is that, since the Inheritance (Family Provision) Act 1938, there have been other Acts which have said that, wherever else is said, "children" is to include adopted children; and if the contents of Clause 7 were not there, then, when you get to the Keeling Schedule, having regard to that point, the Keeling Schedule would not be in the right form. That is all it is. It is simply a clause to get the Keeling Schedule in the right form.
Clause 8 is purely a drafting point. I do not think, as it is a drafting point, I need deal with it. It cures a drafting defect in Section 47 of the Administration of Estates Act 1925, as amended by the Act of 1952. If any noble Lord has a passionate interest in this, then I will deal with it fully in my reply.
Clause 9 deals simply with the Short Title and the necessary repeals. The Bill is restricted in its application to England and Wales and it would come into force on the date to be appointed by the Lord Chancellor, except for Clause 3 which is the clause which validates the order which is held to be ultra vires and which would come into force at once. I put this Bill before your Lordships as a useful piece of law reform in a field which necessarily affects a great many women, and which will put our law in that field into a satisfactory state. I beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
6.55 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, in a Bill of the complexity that
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this one enjoys I think the House will be particularly grateful to the noble and learned Lord who sits on the Woolsack for his very full explanation of its contents, because a considerable amount of research is necessary before one can get to grips with the subject matter at all. I do not think there is anything in this Bill to which the House will have any objection in principle. Indeed, many of the points which do raise some questions of principle are, I think, entirely to be welcomed; particularly, perhaps, the one which gives the noble and learned Lord the power to alter the various financial figures which appear in this Bill without having to come back with a new piece of legislation every time.
There is only one thing I should like to ask him in this connection. After the very full study in1952 by the Committee over which the noble and learned Lord, Lord Morton of Henryton, presided, the Government were in a position to fix very carefully the sums which appeared in the 1952 Act. Now the same thing, I have no doubt, was done for the purposes of this legislation. But I wonder what sort of machinery the noble and learned Lord is going to keep going in order that a check is at all times kept upon whether the figures remain correct or whether alterations should be made. I think he might tell the House whence he will get the information upon which he could act.
The other principle that runs through this Bill—and after the length of experience that the country has had in the administration of this type of jurisdiction by the courts I think we can but welcome it—is the principle of flexibility. The court is given wider powers still under this Bill to deal with matters on the justice of the case before it without the various statutory restrictions which previously fettered the way in which the court could deal with the case. Again I think that is good. On the other hand, while I can but congratulate the noble and learned Lord on the speed with which this legislation was brought forward, it appears that I should apologise for some of the defects of the legislation introduced by my Party in 1952; because I think there are at least three instances—which this Bill puts right—where considerable errors were made in that legislation. Perhaps I need not place all the blame on

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the Party for whom I speak, because this is an extremely technical matter. In one instance, it was not until 1958, I think, that the matter finally came to the attention of the court. Nevertheless, it is a good thing that these matters are cleared up.
My Lords, if it were not for the fact that the 1952 Act had already abandoned the two-thirds limitation (which was all that at that stage the court could allow in the way of income from the estate to be distributed under the powers of the Act) I should have a feeling that there was some case for such limitation. In the early days of this particular jurisdiction, and before the 1952 Act was passed, there was a case called Liddington's case where there was an express provision in a will which dealt only with a quarter of the estate which was left untouched, because at that stage the court had no power to deal with more than two-thirds. Therefore it did not matter that there was an express provision of that nature. Now, of course, whatever you do in your will the whole matter can be reopened, and every single bequest you put in may be challenged afterwards by a member of the family; and it may well be that this would encourage litigation. But I think that the pass was sold on this in 1952. In consequence, Clauses 2 and 3 really only tidy up the matter.
I am a little concerned (perhaps it is only a drafting point) about Clause 3(2) which puts in a new subsection in Section 3 of the 1938 Act, because, if your Lordships will look at the most admirable Keeling Schedule, Schedule 2, it becomes clear at once that no order is made under Section 3 at all. That section deals merely with the effect of the form of the order. It therefore surprises me to find the new subsection (1A) starting off with:
"Any order under this section …"
This is really a substitution for Section 1(3) of the 1938 Act. I should have thought it would have been better to put it in Section 1 of the 1938 Act instead of in Section 3. But perhaps this is purely a drafting point.
My Lords, I do not think that I take any exception on this occasion to the retrospective nature of subsection (3). I thought that it was retrospective, and I am relieved to find that I have not been
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mistaken in this, provided that in no circumstances will the noble and learned Lord use what I say on this occasion as indicating in any way that I ever approve in principle of retrospective legislation. I remember only too well that the noble and learned Lord trotted out example after example of when these things had been done before, and when either someone said that it was all right or nothing was said. Every single one, I am sure, must be justified, and I do not believe that there is any precedent in these matters which could be relied on on a future occasion.
On this particular occasion I think that it is entirely acceptable because of the mistake which has been found, but I hope that the noble and learned Lord will make quite certain that none of the orders which have been proved wrong dates back before 1951—I think that he was a little uncertain on this point, or so he said in his speech. If they do, this retrospection is not enough, because it only writes the provisions of Clause 3 into the group of Acts as if they had been put in by 1952—or so I understand it.
I would not wish to comment any further, except to welcome Clauses 4, 5, and 6 because I think they deal with the matter in a most sensible way. They were fully explained by the noble and learned Lord, and I would endorse what he has said, except perhaps for one point on Clause 6. Presumably, the information which the noble and learned Lord will use for the purposes of deciding whether the sum of £5,000 is a ceiling for county court jurisdiction may be based upon different information again from that he will use in connection with Clause 1. Here again I should be interested to know what are the types of change in the situation which he will look at and keep under scrutiny in order to exercise this particular jurisdiction.
I now understand Clause 7 to be purely a drafting matter. I had thought that it might be a change of substance, and if so, and in any event, I think that it raises what might be one important question of principle on this Bill, in which I think the noble Baroness, Lady Summerskill, is also interested, and perhaps she will say something about it. One of the major difficulties about the

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question of intestacy in this country at the present time is the position of the illegitimate child. Your Lordships may remember that I have a certain interest in this matter, as President of the National Council for the Unmarried Mother and her Child. There is at present a Committee sitting to look into this matter, under the chairmanship of Lord Justice Russell, and I suppose that some people would say that we should not do anything about it until that Committee has reported. Nevertheless, there is no time like the present; legislation such as this type of Bill does not come before Parliament very often.
It may well be that at a subsequent stage in the progress of this Bill the House would like to consider whether something might be done to provide for the illegitimate child being able to inherit some, if not all, of what is equivalent to the legitimate child's rights under the legislation which is now being amended. I do not know whether the noble Baroness, Lady Summerskill, wishes to go further than that at this stage; it may be that she does, but I should certainly welcome an examination of this, if the House thought fit to do so.
The difficulty is exemplified, I think, in a case that I found in The Times on May 20 and I am, therefore, even more up to date than the noble and learned Lord. It was called In re T.B.—these things very often being done by initials—where again Mr. Justice Ungoed-Thomas sitting in the Court of Protection made a settlement, a revocable settlement, under Sections 102 and 103 of the Mental Health Act 1959, whereby a considerable sum of money belonging to the patient in a mental hospital was settled on his illegitimate son. The difficulty was that it was very unlikely that the father of this boy, or man as he had become, would ever be able to make a proper will and in the event of his never making one, and in the absence of such a will, the son, who had been brought up by his father, would be entirely unable to claim anything from his father's estate. Therefore, this particular settlement had to be made to get over the difficulty. These are just the sort of difficulties which arise in this matter, and here it may be that we have an opportunity to put it right.
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My Lords, although I would not ask the noble and learned Lord to explain it, I am afraid that Clause 8 is an example of something which went seriously wrong in the 1952 Bill. The subsection concerned is, as is pointed out in this clause, only declaratory; but, although it seemed to be harmless at the time, in fact it was not declaratory at all. It was a muddling subsection because it transpired, when it was examined very carefully by Mr. Justice Harman (as he then was) in a case in 1958 called In re Lockwood, that it was almost impossible to construe. It certainly made a section of the Act much more obscure than if it had been left out, and it very nearly enabled the Crown to get away with a great deal of money as bona vacantia when it ought to have gone to some perfectly proper nephews and nieces of the old lady who had died. Therefore, I am very glad to see that this has now been taken out. I understand from what Mr. Justice Harman said in that case that in its absence there would be no difficulty at all about construing that section as it was put in the 1952 Act. My Lords, this Bill is a bit of a hotch-potch, but it seems to me that the principles and the details are entirely acceptable and I hope that your Lordships will give it a Second Reading this evening.
7.8 p.m.
LORD DENNING: My Lords, I, too, should like to thank the noble and learned Lord the Lord Chancellor for this Bill. It is indeed an excellent example of the way in which Law reform should be done. We have heard in the last year or two, indeed in the last six months, cases in which defects have been disclosed in the previous legislation. Take, for instance, the six-months' period, which was incapable of extension, during which the widow had to apply under this Act. We had a case in the Court of Appeal in which, unfortunately, a widow's solicitor, just before the end of the six months, applied in a district registry in Wales, when the application ought to have been made in London. Because of that, it was held that her application was invalid: she was out of time, and she lost altogether. Now there will be a power in the court, if it thinks fit, to correct such matters as that and let her come, even at a later time. Another instance, in January

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of this year in the Court of Appeal, disclosed that the earlier orders for twenty years had been given under a misapprehension, and were therefore presumably invalid. I would sincerly welcome retrospective legislation to correct them for the past.
My Lords, I would not say more, except to draw attention to a matter which has come under our notice in the last fortnight and which I would suggest could well be remedied in this legislation. Your Lordships will know that we are now concerned not only with widows but also with former wives after a divorce. They, too, can come to upset a will. But my point is that there is no power to make interim orders. I should like to give an illustration which is actually from a case that we had.
A wife with her husband had lived a happy married life for twenty years and had five children. After those twenty years the husband left her and went to live with a mistress. He found a matrimonial home for her and left her there. He was ordered to pay maintenance for her and the children. Within two years he died and left the whole of his property to his mistress. The former wife and the children had no further right to maintenance. They could not even get any arrears in maintenance from the estate after death. There was surely a strong case that that former wife should have had power to apply to the court for interim maintenance or for an interim order, pending the final decision of the matter.
The executor took the view that he could not make any payments. He was so advised and his lawyers accepted it. The building society was coming down on the house, to turn the widow out of the home which her former husband had provided. The instalments had to be paid to the building society to make them stay their hand. The executor was told that he had no power to pay the building society instalments. One judge ordered him to do so, but the Court of Appeal upheld that under the Act as it is there was no power to order the estate to pay instalments of that kind and no power to make an interim order. It might be a year or more before the application of the former wife can come to the courts.
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As this Bill is so pertinent on the matter and as it is before your Lordships' House, I hope that consideration can be given to remedying this. I throw this suggestion out for consideration as one of those matters which appear in the course of the work of the courts and where a reform of the law is so welcome. I should like to thank the Law Reform Commission very much for what they have done. How much easier and pleasanter it is to find a whole Act as amended in the Schedule! I most warmly support this Bill, remedying a very important field of the law.
7.13 p.m.
BARONESS SUMMERSKILL: My Lords, I also would express my gratitude to my noble and learned friend the Lord Chancellor for the consideration and sympathy which he has shown to widows and dependent children by initiating this Bill. I should like to raise a question already touched on by the noble Viscount, Lord Colville of Culross. While the Bill clarifies the law about adopted children, there is no mention of the illegitimate child, who may have a claim considered as a dependant for the purpose of the Inheritance (Family Provision) Act 1938. The claim of the illegitimate child may be either on the estate of the mother in intestacy or on the estate of the father, where he has been paying an affiliation order or paying for the maintenance of the child under some private arrangement.
I know, of course, that a Committee of Inquiry, under the chairmanship of Lord Justice Russell, is now examining the law of succession in relation to illegitimate persons, but for so long it has "not been done" to mention illegitimacy, or it must he mentioned in a muted manner, that I think every opportunity should be taken to ventilate their needs. A Bill of this kind does not often come before Parliament, and therefore I should like to put the case for the illegitimate child, who is not always unwanted, but who has great difficulty in establishing his or her rights in the world. The illegitimate child has no pressure group. In view of the fact that the Russell Committee have not yet reported, perhaps it is effrontery to ask my noble and learned friend whether he will anticipate the Report and include illegitimate children in the provisions of this Bill.

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There is no doubt that the attitude towards illegitimate children is becoming less prejudiced, and I think there is little desire to penalise illegitimate children because of the status of their mothers. A further extension of the rights of these children would be in keeping with the trend of past legislation, as expressed in the Legitimacy Acts of 1926 and 1959; but, of course, there are considerable residual legal disabilities for illegitimate children, compared with legitimate children, and it is important for us to remove these, so far as possible, in order to help these children to overcome the social handicap acquired at birth.
Under the Legitimacy Act 1926, the illegitimate child has a right to succession on an intestacy to the estate of his mother only if she leaves no legitimate children. We are accustomed in this House to pointing to legislation in other countries, and I would point here to the Scandinavian countries, where there have been signs of tremendous social progress. In Norway and Denmark the law makes no distinction between legitimate and illegitimate children, so far as inheritance is concerned. In France, though illegitimate children may be entitled to less than the legitimate, at least they are recognised. I think that in the past there has been a tendency to feel that the basis of family life and the sanctity of marriage would be threatened if the illegitimate child were given greater equality of legal rights, but it has always seemed to me that where paternity has been established, the family proves resilient. I would remind the House that one-third of the illegitimate children born every year are being brought up by both parents, living together in more or less stable union.
While I was at the Ministry of Food after the war, from 1945 to 1950, while we still had rationing, the Ministry were mystified by the number of ration books left unclaimed. This was traced to the reluctance of housewives, living apparently conventional lives with their families, to claim rations for illegitimate children, lest the local office discovered that there was no legal marriage. It was necessary for me to make it clear to these mothers that they could apply under any name and no inquiries would be made about their married status. The
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Ministry had only to be satisfied that they were responsible for feeding a child.
Under the laws which we have been mentioning no provision is made for illegitimate children. The noble Viscount has already mentioned the National Council for the Unmarried Mother and her Child, who are investigating conditions both of mothers and of children. They have brought to my notice some cases which serve to illustrate my point. I would ask my noble and learned friend the Lord Chancellor not to make any statement on these cases now, but to study them afterwards.
The first case is of an illegitimate daughter who bought a house for her mother and the man she subsequently married. On their deaths, she discovered that, as no will was left, the house she had bought went to her legitimate half-brothers and sisters. The second case is that of a father and mother of an illegitimate child who cohabited for some years. The father was a man of some substance. He died without making a will, and his son was not able to inherit from the estate. The money went to a sister whom the father had not seen for twenty years. In the third case, the father and mother had cohabited for nine years, and the father was responsible for the school fees of his children. On his death nothing was available for them from the estate.
I realise that there are tremendous difficulties in injecting the illegitimate child into this Bill, because noble Lords will ask: "What about the inheritance of titles and their estates, and so on?" I think we have to recognise that there is only a small minority of people in that situation. I am appealing now for the large number of illegitimate children in this country. The figures for England and Wales indicate that the number has increased from 4·8 per cent. in1952 to 6·6 per cent. in 1962. The absolute figures for illegitimate live births are 32,549 in 1952, and 55,376 in 1962. I would remind the House that while the illegitimate child still suffers from some degree of social stigma it is important that he should be helped as much as possible by removing every economic and legal disadvantage that it is within our power to remove. My question to the

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noble and learned Lord the Lord Chancellor is: Could we not contribute to this by amending the law relating to intestacy?
7.22 p.m.
THE EARL OF IDDESLEIGH: My Lords, I rise to give such general support as I can to the noble Baroness who has just spoken, and also to the plea of the noble and learned Viscount on behalf of the illegitimate child. The object of any discrimination against illegitimate children is, presumably, to safeguard the honour of marriage. That is an object which I am sure we all have at heart. But it does not seem to me that natural sanctions are either just or effective. The noble Baroness, Lady Summerskill, has mentioned the law in France. It is, indeed, a provision of the Code Napoleon, and therefore a part of the law in all the many countries which base their law on that great Code, that the illegitimate child should have some rights of succession. I understand that the general tendency of French legislation on this subject has been to increase the share that the illegitimate child takes.
I need not go into details, though I may mention one interesting provision of French law which I do not think could be enacted here but which is of some interest in itself and one with which I have some sympathy. In France they recognise two kinds of illegitimate child: the child who is conceived as the result of fornication, and has the rights over property which I have mentioned, and the child conceived by adultery or incest, who has only a right to alimentation, which corresponds roughly to maintenance. I do not think we could follow the French law in these provisions, as they would run contrary to recent legislation on the subject of illegitimacy and it would not be reasonable for us to do it. I nevertheless find it most interesting and important. The principle, however, that the illegitimate child should have some rights to succeed to property is one which I, for my part—and I speak only for myself—entirely support, and, like the noble Baroness, I trust that it may be possible to do something under this Bill.
7.26 p.m.
THE LORD CHANCELLOR: My Lords, I am grateful to the House for the
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reception given to this Bill, and I will deal shortly with the few points which have been raised. The noble Viscount, Lord Colville of Culross, asked me what my machinery was going to be for keeping these sums of money up to date, and where I was going to get the information from. Frankly, I have not yet settled a future policy. Wherever there is such a sum of money which can be altered by an order under an Act, it ought to be looked at once a year. Whether some other period would be better, I am not sure. Where you get the information from depends entirely, of course, on the nature of the sum of money. What has happened is that if it is a question of a fall in the value of money, I get the information from the Treasury, who know all about that; and if it is a question of the price of houses, there are various building societies which publish information as to what at different times are the prices of different sins of houses. It must depend on the kind of information.
I am grateful to the noble Viscount for his drafting point under Clause 3. My present impression is that he is right, but I will have this looked at. With regard to retrospection, the clause was intended to be retrospective only to 1952, the main reason for this being that orders before 1952, if there are any still in existence, would have been made under the 1938 Act, when the two-thirds limit was still there. I am grateful to the noble Viscount also for referring me to the subsequent case before Mr. Justice Ungoed-Thomas, and I will certainly look at that.
The noble and learned Lord, Lord Denning, raised a point with regard to there being no power to make interim orders. I will certainly consider that matter before the Committee stage, and I am grateful to the noble and learned Lord for his suggestion.
I think that leaves only the question of illegitimate children. My noble friend Lady Summerskill tends always to prod me on—and I do not complain of it, because it is a good thing. I think our views in this sort of field are usually very much alike. But this time she really is asking me to "jump the gun", because these questions as to illegitimate children and intestacy have been the subject of a

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most careful inquiry by a Committee presided over by Lord Justice Russell. They have been sitting for some time. I know they have had evidence from the National Council of the Unmarried Mother and Her Child, and I should think that all the particular cases mentioned by the noble Baroness have probably been before them. As I understand it, their Report may be published in the fairly near future.
In those circumstances, while I am not dissenting from any of the views which have been expressed, I could not possibly say anything on behalf of the Government until the Report has been published and we have had an opportunity of seeing whether or not we accept what their recommendations may be. I suspect that we should not do that until the Press and other public bodies have had some opportunity of saying what they think of the recommendations, because this is a controversial subject, and I believe rather more so in Scotland than in England. While I am sympathetic to this, and I follow the point that if you are going to legislate on any recommendations of the Russell Committee this might be a good Bill in which to do it, I should think that on the timing it will be difficult to do it in this House. If one approved the recommendations, and one wanted to incorporate them in the Bill, I should suspect that it would be more likely to be done on Committee stage in another place rather than here. Beyond that I cannot commit the Government in any way until the Report has been published, and they have had an opportunity to see what the recommendations are, what public opinion is, and which recommendations they can accept and which they cannot. It is not that I am unsympathetic. It is simply that, obviously, after there has been an inquiry by that kind of high-powered Committee, no Government would be prepared to commit themselves until they had seen the Report, particularly if I am right in thinking that the Report will be published in the near future.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

TRIBUNALS AND INQUIRIES BILL [H.L.]
7.31 p.m.
Report of an Amendment received (according to Order).
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved, after Clause 2, to insert the following new clause:
Hearings under Part X of the Local Government Act 1933
".A member of the Council on Tribunals, in his capacity as such, may attend any hearing conducted under subsection (2) of section 231 of the Local Government Act 1933 (procedure on appeal or application to the Minister in respect of the district audit)."
The noble Viscount said: My Lords, I moved an Amendment similar to this on Committee stage, and there are now only two differences in the situation. I hope, first, that I have the drafting right, and, secondly, I have done some more research to see whether I could find out what the origin of this particular provision is. It might be worth while briefly to set out what the problem is. Under Part X of the Local Government Act 1933, there is a power in the district auditor to surcharge a member of the local authority who has gone beyond the powers that the law allows. If this is done, and the surcharge is in a sum over £500, then that councillor is automatically disqualified under Section 59 of the Act from serving on that local authority for five years, and he can appeal. If the sum is £500 or more, he can appeal only to the High Court. In the Audit (Local Authorities) Act 1927, which is where this provision first came from, it was made quite clear that the Minister of Health, as he then was (it would be now the Minister of Housing or the Secretary of State for Wales) was not to interfere in these important matters because it might be thought that some political pressure had been brought to bear. Therefore, where there was a question of disqualification the matter had to go to the High Court.
Of course, there are the smaller sums as well. In that case, the matter, which did not involve disqualification, could go either to the High Court or to the Minister. If it goes to the High Court, if it is either over or under £500, it is provided by Order 118 of the Rules of the Supreme

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Court that the matter should be dealt with in public. But if it goes to the Minister, then Section 231(2) says that the Minister shall provide the applicant or the appellant with a personal hearing. As I understand it, successive Law Officers have advised successive Governments that when it says a "personal hearing" it means a private hearing. I thought it would be most presumptuous of me to question what successive Law Officers have said on this matter. Nevertheless, I totally fail to understand the logic of it. It was suggested that what Parliament had done was to provide an alternative method whereby the matter could be dealt with privately, if the applicant or appellant chose.
The noble and learned Lord, Lord Parker of Waddington, said that in his view this was not so at all, and although unfortunately the OFFICIAL REPORT left out a crucial point "not", I hope nevertheless that the House will recall what he said and interpret it in the way I have suggested.
I therefore thought that it would be worth while seeing whether I could find out how this provision came to be in the law at all. My Lords, I have, because I have found a speech by the father of the noble Marquess, Lord Salisbury, which he made on December. 15, 1927, on the Second Reading of the Audit (Local Authorities) Bill. What he said was this:
"Lastly, the practice in respect of these appeals is that appeals to the Minister—that is the appeals as they will be in future—in respect of small sums of money are decided without a personal hearing by the appellant."—[OFFICIAL REPORT, Vol. 69, col. 1040; 15/12/27]
What happened—it is dealt with under Section 155 of the Poor Law Act 1927, among other places—was that the Minister simply decided, without hearing anybody on the matter at all. When Parliament came to deal with this in the second Bill in 1927, the Audit (Local Authorities) Bill, they decided that a personal hearing should be provided. The noble Marquess went on:
"That also is not consonant with our modern view. If a man appeals he ought to be heard. Therefore there is a provision that where he appeals to the Minister he shall always have a personal hearing by some official appointed by the Minister for the purpose."
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It seems to me to be clear beyond a peradventure that that is how the matter came to be enacted in the first place. The 1933 Act was a Consolidation Act and, therefore, the matter was never debated, so far as I can find out, in either House.
What I am asking now is that, since the Council on Tribunals are required to supervise hearings of this kind held by the Minister under this subsection, they should have the right, if they want, to go and listen to the hearing. I am not suggesting that they should retire with the inspector, or in any way influence matters, but simply that they should go and listen. That is what my Amendment provides. I hope it does it right this time, and I beg to move.
Amendment moved—
After Clause insert the said new clause.—(Viscount Colville of Culross.)
THE LORD CHANCELLOR: My Lords, although I opposed a similar Amendment on Committee stage of the Bill, I am not proposing to divide the House on this Amendment to-night. There has been a dispute between the Council on Tribunals, and, I think, three successive Governments, as to what the words "personal hearing" mean. Three successive Governments have been advised by their Law Officers that it means a hearing in private. The Council on Tribunals says that it means only a hearing in person. Whichever of those views is right, so long as it is not said that by accepting this Amendment I am setting some precedent, I do not honestly think it matters two hoots one way or the other. These inquiries will be few. The Ministers concerned do not object, and so long as it is not said that I am setting a precedent it is not, I think, worth having any further dispute about this. For those reasons, I do not propose to divide the House on this Amendment.
On Question, Amendment agreed to.
7.38 p.m.
THE LORD CHANCELLORmoved to leave out Clause 3. The noble and learned Lord said: My Lords, this was another matter which was also considered in Committee when this clause was put in. I think there is some ground for asking the House to reconsider what happened in Committee, for the following reasons. First, I do not think that either

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the noble Viscount or I, if I may say so, were aware of all the relevant facts. I pointed out at the time that the House had given me leave to go to America on a Thursday. The Committee sat on the following Tuesday. I came hack on the Monday, the Amendment having been put down on the Friday while I was in America. As I said then, this is no complaint; the noble Viscount was quite entitled to do that. But in the result a dispute arose between us of this nature, but we both agreed that, so far as these proceedings before the Betting Levy Tribunal were concerned, they were similar to, and could not really be distinguished from, the proceedings before Inland Revenue Tribunals, namely, the General Commissioners of Income Tax and the Special Commissioners of Income Tax.
The noble Viscount, in dealing with this matter in his opening, said, first, that it would seem that the hearings were not distinguishable from the Revenue tribunal hearings; secondly, that the Council on Tribunals could attend as of right all those hearings. I said that that was wrong. I agreed that the point was similar to the Inland Revenue tribunals, but said that the Council could attend only if the taxpayer did not object. In reply, the noble Viscount again said that, as he understood it, I was wrong and that they could attend as of right. What those present drew from all that, with one lawyer saying one thing and another saying the other, I do not know. There were only a handful present, and the situation was not improved by the fact that when the Division bell went (as he was entitled to do, the noble Viscount pressed the Amendment to a Division) about 30 noble Lords came into the Chamber who had not the foggiest idea what was going on. And I am authorised by my noble and learned friend Lord Dilhorne to say that he came in and he voted with the noble Viscount because he did not know what it was all about, but that, if he had known, he would have voted the other way. These facts justify me in asking the House to reconsider the question.
The noble Viscount was erroneous in thinking that the Council were entitled as of right to send somebody to a hearing of the General or Special Commissioners of Income Tax. The position is that for over 100 years successive Governments
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have maintained jealously the right of the Inland Revenue to refuse to give any information to any third party as to a taxpayer's affairs disclosed to them. They do not even tell their wives; they do not tell anybody. As I said last time, if you once start to make exceptions I am sure the Council on Tribunals would be a very good exception. Another very strong case is that of the wife who is deserted by her husband and gets a maintenance order, and then he disappears. One person who knows where he is and how much he is making is the Inland Revenue. But even in those circumstances no Government, of any complexion, has agreed to waive this restriction on disclosure. It being agreed that this case of the Betting Levy tribunal ought not to be separated from the Inland Revenue case, the same thing must apply.
I have looked at the debate on the Betting Levy Bill. Your Lordships may remember that the bookmakers and the Totalisator were to be treated alike, and as there was to be a levy on the Totalisator for improvement of British bloodstock, so the bookmakers had to pay a levy, too. There is the Betting Levy Board, but the Board were not to conduct the levy on the bookmakers. There was to be a bookmakers' committee who were to draw up categories of bookmakers according to turnover, and all the bookmaker had to do was to make a declaration that he came into such a category. If the committee did not believe him they had no powers to look at his books or cross-examine him. They put him in a higher category, and then he could appeal to the Appeal Tribunal, an independent body; and to satisfy them he would have to produce his books.
It is a little interesting that in the Committee stage in this House the noble Lord, Lord Denham, moved an Amendment to provide that the Board itself should make the levy, that the Board's inspectors should be allowed to look at the bookmakers' books, and, in the final provision:
"The Levy Board and its agents shall he under a similar obligation to preserve the secrecy of the accounts of individual bookmakers as are the Commissioners of Inland Revenue regarding the accounts of individual taxpayers."
That Amendment was not accepted by the Government, because, as the noble Earl, Lord Bathurst, who was speaking

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for the Government, said, this was making much too heavy weather of it. One should not expect that most bookmakers would put themselves in the wrong category. We do not want a horde of inspectors inspecting the accounts of every bookmaker. It is much simpler to do what the Bill says: let the committee put them in one category or another without the right to see the books, and if a particular bookmaker feels that he is in the wrong category he can go to the Levy Board.
Apart from that there is one additional reason why I would ask your Lordships to accept this Amendment. I have since last time ascertained more clearly exactly what has happened in relation to the Betting Levy Tribunal and the Council on Tribunals. They did attend one case in Scotland, when the question of whether or not they should be there was never raised by anybody. They have never attended the Scottish tribunal again, for the reason that the chairman is also the chairman of a number of other tribunals, and they have seen a lot of his work and entertain a very high opinion of it. So far as the English tribunal is concerned, just as they have attended hearings of the General Commissioners when the taxpayer has not objected, so they have attended hearings of the Betting Levy Appeal Tribunal where the bookmaker has not objected. So they have, in fact, seen how the scheme works. Lord Hamilton of Dalzell, one of the members of the Council, attended one hearing, and I have his report here. He says:
"The room was a small court room and very suitable for the purpose. The chairman conducted the proceedings admirably, explaining the procedure to the appellant and giving him full opportunity to state his case. Then he heard two other appellants who had given consent to my being present. Neither appeared in person."
Then he says:
"The remaining persons had not given written consent, so I withdrew."
So this does not preclude, either in the case of the Revenue tribunals or the Betting Levy appeal tribunals, members of the Council from being able to go and see how these tribunals work, because in both cases experience shows that there are a proportion of taxpayers, in the one case, and bookmakers, in the other, who do not object; and the Inland Revenue have
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no objection at all if the taxpayers consent. For all those reasons, I would ask your Lordships to review the decision which was made in Committee and to accept this Amendment to leave out Clause 3. I beg to move.
Amendment moved—
Leave out Clause 3.—(The Lord Chancellor.)
7.47 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, of course I must be the first to agree with the noble and learned Lord that some of the information which I put before your Lordships last time was incorrect, and I think he had the better of the argument, so far as that is concerned: the facts have turned out as he said. Nevertheless, I believe that the point I sought to make then does give rise to a matter which the House might care to note.
It may be (this is really a matter for judgment, and I am not so sure that I am now quite so certain as I was at Committee stage) that the Betting Levy appeal tribunals are analogous with the tax tribunals. Your Lordships may think that is so. On the other hand, I was particularly interested to see the rules made for the industrial training tribunals, before which the matter of the levy under the Industrial Training Act 1964 is discussed when there is an appeal. This particular levy is raised by what is known as a levy order, and there are, I think, five orders in force at present. The method is to take a percentage of the total emoluments of the persons employed in the establishment concerned—0·5 per cent., or 2.·5 per cent., or £7, or something like that. These must be matters which, particularly since the advent of the selective employment tax, are extremely confidential and personal matters, very similar to those raised before the Betting Levy appeal tribunal; very similar to tax cases.
The regulation which deals with the procedure (it is paragraph 6(1) of the Schedule to the Industrial Tribunals (England and Wales) Regulations 1965) states:
"The hearing of an appeal shall take place in private unless the court determines, at the request of the appellant, to hear the appeal in public. A member of the Council on Tribunals shall he entitled to attend the inquiry in any appeal in his capacity as such a member."

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There is, therefore, in the mind of the Ministry of Labour (because it was they who were responsible for that Order) a perfectly clear distinction between letting in the public and letting in the Council on Tribunals.
We have now only one case, the Betting Levy Appeal Tribunal, where, by law, the Council cannot send a member as of right. In the case of income tax tribunals it is not a matter of Statute Law but of convention. I hope that the discussions we have had on this particular matter will make it perfectly certain that we do not pass any more laws which prevent the Council on Tribunals from going, because it seems to me that they are put in a difficult position, if not sometimes an impossible one, if we prevent them from doing their duty in this way.
I was most interested to hear what my noble friend Lord Hamilton of Dalzell found when he went to this tribunal. I knew that he had gone; but the fact remains that he had to leave because two or three of the appellants had not given consent in writing. I am told that the same thing has happened in tax cases. A series was being heard in the morning and the written consent of two or three of them had been given. Perhaps the others did not come, so there was no written consent, and therefore the member of the Council on Tribunals had to go. If one believes in the importance of this Council, one realises that that is not the way in which they should be treated. I think we should bear that in mind, if ever the occasion of hearings of this sort comes up in legislation in future, as I am perfectly certain it will.
Nevertheless, I know that the noble and learned Lord has considered this matter carefully, and the House will have heard what he said. The facts of the accessibility of this particular tribunal are as he says, and they can get in if the appellant gives his consent. In those circumstances, and seeing that apparently this brings this matter of principle, if it is thought to be one, into conflict with my Amendment, I do not think that I can resist the Amendment moved by the noble and learned Lord.
THE LORD CHANCELLOR: My Lords, for the record, may I just say in reply that I am a strong supporter of the
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admirable work done by the Council on Tribunals, but I have always thought that they make heavy weather of this point. Nobody has in fact stopped them from seeing how this tribunal works, but of course they cannot attend all the hearings of all the tribunals all the time. They can see a representative hearing. Wherever a bookmaker does not object they can go and see that. Whether they see three on one day and then retire and see three on another day, or attend all six on the one day, seems to me to make no difference. It is not preventing them from doing their work under the Act. That is why it has always seemed to me, with the grestest respect to the Council on Tribunals, that they have made rather heavy weather on this point. However, there it is.
On Question, Amendment agreed to.
In the Title:
VISCOUNT COLVILLE OF CULROSS: My Lords, this is consequential. I beg to move.
Amendment moved—
In line 6, after ("Scotland") insert "to make provision with respect to the attendance of members of the Council on Tribunals at personal hearings under section 231 of the Local Government Act 1933; ")—(Viscount Colville of Culrass.)
On Question, Amendment agreed to.

CRIMINAL APPEAL BILL [H.L.]
7.54 p.m.
Report of Amendments received (according to Order).
Clause 6A:
Record of proceedings at the trial.
6.—(1) Rules of court may provide for the making of a record (whether by means of shorthand notes, by mechanical means or otherwise) of any proceedings at assizes or quarter sessions in respect of which an appeal lies (with or without leave) to the criminal division of the Court of Appeal and for the making and verification of a transcript of any such record and for supplying the transcript, on payment of such charge, if any, as may be fixed for the time being by the Treasury, to the registrar of criminal appeals for the use of the criminal division of the Court of Appeal or any judge exercising the powers of a judge of that division and to interested persons.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved, at end of subsection (1), to leave out "interested persons" and insert:
"such other persons and in such circumstances as may be prescribed by the rules".
The noble and learned Lord said: My Lords, I beg to move the Amendment standing in my name on the Marshalled List. This is the only Amendment, and I am sorry that an Amendment should be necessary on the Report stage. What has happened is this. As your Lordships know, this Bill is one to implement the recommendations of the Committee presided over by the noble and learned Lord, Lord Donovan, in effect abolishing the present Court of Criminal Appeal and constituting that Court a section of the Court of Appeal.
There was one clause, however, which deals with a matter not contained in that Report. It was a clause dealing with transcripts. The reason why there was a clause about transcripts at all was simply that one should always look at the future. I have a Committee sitting under the chairmanship of Mr. Justice Baker which has been considering the whole question of the recording of court proceedings mechanically instead of by shorthand. That Committee has already given me a useful interim Report, but they have not yet given me their final Report. However, I thought it right, looking to the future, to provide for the possibility of mechanical recording, though that is a thing which obviously is going to take a considerable time to install and so forth. But one has to look to the years ahead.
That clause reproduced in other respects wording of earlier Acts as to who was to be entitled to a shorthand note. The position, so far as divorce cases are concerned, is that there are limits to supplying shorthand notes to other people—and, indeed, your Lordships may well feel that that is right so far as the habits of the marriage bed are concerned. After all, marriage is peculiarly an individual thing. It may be one thing to hear a divorce case in public, but it is another thing to give to people who are not parties a detailed transcript of the evidence. But so far as a civil case is concerned, anybody is entitled to get a transcript if he pays for it. It is a public hearing. Anybody can attend. Anybody can take notes. Anybody can take a shorthand writer with him, and anybody is entitled, provided he pays the charge laid down, to have a transcript of the hearing in a civil case.
In regard to criminal proceedings, for some reason or other, in the Criminal
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Appeal Act, 1907, this right was restricted. The only people who were allowed to have a transcript, even if they paid for it, were interested parties: that is to say, the prosecution and the accused, the Judges of the Court of Criminal Appeal, of course; and it was also provided that the Home Secretary could have a transcript of any case for his own use. Almost as soon as it started, this gave rise to enormous difficulties, because the first thing that happened was that a solicitor said, "I want to advise my client as to whether or not he should appeal; so I want a transcript." The answer to that was, "Until you give notice of appeal"—and presumably an appellant must be a party—"you cannot have one. You must give notice of appeal first, and then only can you get a transcript."
Then there were other people who had a legitimate interest, because they had civil proceedings pending. A man might have been convicted of driving a car whilst under the influence of drink, and a civil claim might have been pending, and it was important to everybody to know what he said in evidence in the criminal proceedings. All these difficulties were eventually overcome by its being said that anybody could have a transcript with the leave of a Judge of the Court of Criminal Appeal.
The next thing that happened was that the Home Secretary told the House of Commons, in answer to a request, that if they wanted him to, certainly he would put a transcript of some particular cases in the Library of the House of Commons. Then it was found that the section said "for his own use". So that was no good. Then the section was altered again, and the words "for his own use" were cut out.
This power of a Judge in the Court of Criminal Appeal to allow somebody to have a transcript has been a source of considerable difficulty, because this, in effect, makes the Judges censors. How are they supposed to exercise the power? If the criminal proceedings have been of a sexual or indecent character, are they then supposed to refuse a transcript? Or if an author wants to write a book about a case, are they to say, "I think he is rather a good author; therefore I will let him have a transcript"? In another case will they say,

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"I will not let this other person have a transcript"?
All the way through the matter has been one of great difficulty. I remember very well in the Timothy Evans case, a case in which I was rather interested, Evans's mother was refused a transcript until after her son had been hanged, on the ground that she was not a party interested—which, technically, I daresay, may have been right. My noble friend Lord Kennet recently asked a Question because Mr. Ludovic Kennedy was writing a book in relation to the Ward case and had been refused a transcript.
The noble and learned Lord, the Lord Chief Justice, tells me that this power is not one which the Judges of the Court would desire to have. If there is to be censorship of some kind, this is a social rather than a legal question. If Parliament said that only people in certain categories are to have transcripts, then it would be quite proper judicially to say whether some particular individual comes into that category. But this very general power is not one which the Judges would desire to have. So the Government have considered if there is any real reason why anybody who is able to pay for a transcript should not have one. They are fairly expensive. At present rates the cost to the parties is about £48 a day. If a transcript is being made for the Court of Criminal Appeal a carbon made at the same time would cost only £5 a day. Therefore, with an ordinary transcript costing £48 a day, nobody will be likely to want a transcript who does not really need it. After all, a court is a public place and anybody can go there. In fact, an author could take along his own shorthand writer to make his own notes. If he is writing a book and wants to verify that his recollection is accurate, why on earth should he not have a transcript in order to make sure that it is accurate?
The Amendment is designed to remove the old form which, I am afraid, was in the Bill about the party interested, and to provide instead that a transcript may be given to such other persons and in such circumstances as may be prescribed by the rules, so that the matter would be left generally to the Rules Committee. Your Lordships will want
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to know what the Rules Committee would be likely to do. What I would wish them to do I have no doubt they will do, and that is that they should act on the general principle that anybody should be entitled to a transcript, except that there are cases in which a court can order that the name of some person who is under 16 is not to be mentioned. The transcript rules would have to cover that point. Then there are sometimes criminal cases in which the evidence is heard in camera on security grounds. Again the rules would have to provide for that. They would have to provide, as indeed the existing rules do provide, as to what charges the shorthand writers were to make; and, either in the rules or administratively, arrangements would have to be made to ensure that any transcripts wanted by the public in criminal cases did not delay the making of transcripts for appeals.
We are rather short of shorthand writers in these days, and what, of course, would be quite wrong would be that appeals against convictions should be held up because the shorthand writers were busy making, perhaps more profitably, transcripts for private people. Therefore, there would have to be, either administratively or by rules, some arrangements made to ensure that the fact that people wanted transcripts did not delay the hearing of appeals. It is on these grounds that I beg to move the Amendment which stands in my name.
Amendment moved—
Page 6, line 5, leave out ("interested persons") and insert the said new words.—(The Lord Chancellor.)
VISCOUNT COLVILLE OF CULROSS: My Lords, the House is again grateful to the noble and learned Lord for the explanation of this Amendment, which, clearly, has rather more to it than might at first have met the eye. There is one point which I should like to put to the Lord Chancellor for his consideration. The method which is to be chosen is quite clear in this subsection, and it is Rules of Court. It is also perfectly clear from what the noble and learned Lord has said that this is not a legal, but a political or social matter. Therefore, it will be the Rules Committee which might have to put in those rules. Parliament, as I understand it, has no control over the Rules Committee. If the situation is

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really as the Lord Chancellor has said, I venture to think that it would be worth while considering whether these rules, at any rate in this respect, might take the form of a Statutory Instrument rather than rules of the Supreme Court. Parliament would then be able to express its view, whereas at present it cannot. I hope the noble and learned Lord the Lord Chancellor will be able to tell me whether that is possible. I should have thought that either here or in another place it is conceivable that the course which I have suggested would be preferable to the course embodied in the Amendment itself.
THE LORD CHANCELLOR: My Lords, I think that it would be desirable that any rules should be made by the Committee, because all other rules in relation to this Court are made by the Committee. But the rules of the Committee are subject to the Negative Resolution procedure in this House, so that if any Member either in your Lordships' House or in another place disapproves of a rule he can move to disapprove them under the Negative Resolution procedure.
On Question, Amendment agreed to.
House adjourned at seven minutes past eight o'clok